Tournament: berkeley | Round: 4 | Opponent: Canyon Crest PJ | Judge: Barquin, Joseph
Thus, the plan: States ought to apply the Public Trust Doctrine to reduce the appropriation of outer space by private entities.
There is an urgency for global regulation and management in space, only the PTD ensures sustainable mining and limits appropriation.
Babcock 19 “The public trust doctrine, outer space ... - georgetown law.” (n.d.). Retrieved January 4, 2022, from https://scholarship.law.georgetown.edu/cgi/viewcontent.cgi?article=3219andcontext=facpub
Space exploration is heating up. Governments and private interests are on a fast track to develop technologies to send people and equipment to celestial bodies, like the moon and asteroids, to extract their untapped resources.1 Near-space is rapidly filling up with public and private satellites, causing electromagnetic interference problems and dangerous space debris from collisions and earlier launches.2 The absence of a global management system for the private commercial development of outer space resources will allow these near space problems to be exported further into the galaxy.3 Moreover, without a governing authority or rules controlling entry or limiting despoliation, outer space could turn into the “Wild West” of the twenty-first century.4 Space treaties executed in the last century espoused the principle that space should be developed for the benefit of all mankind and banned both private ownership and militarization of space resources.5 But, they left development of a system for managing non-military activities in outer space to another day.6 Private commercial interests, which would be absorbing the risks and paying the high costs of space development, oppose any management scenario premised on that principle, as it would enable less developed countries to free ride on their investments.7 These interests, unsurprisingly, support privatizing outer space.8 But acceding to their wishes by establishing a system of property-based rules would transport Earth’s current division between haves and have-nots into outer space, and could lead to destabilizing hostilities—the exact consequences that the early treaty drafters hoped to avoid.9 To date, most scholars in this area have focused on developing management systems premised on private ownership or possession of the surface of some celestial body.10 This Article explores an alternative concept, the commons, in which no individual owns the property in question or can exclude others from it. Viewing property as a commons is closer to the principles set out in the various space treaties than implementation of a private property regime, and also offers a workable property regime. This Article demonstrates these conclusions by showing similarities between a large, Earth-bound commons, like the ocean and outer space, and how various commons management scenarios allow equitable use of resources, while preventing their despoliation and devolution into hostile disputes over entitlements to them. However, each of these commons management scenarios is flawed in some way and runs a similar risk to management approaches for private property of allowing the resource to be over-used or inequitably distributed. The public trust doctrine (PTD), an ancient doctrine that governments and individuals have used effectively for centuries to protect the public’s interests in terrestrial common pool resources (CPR) and to fill regulatory gaps, can be helpful in both respects.11 An examination of the doctrine identifies commonalities between outer space and terrestrial public trust resources.12 The ease and low cost of its implementation and enforcement, as well as its infinite malleability, are additional reasons to select it as a stopgap measure with some modification.13 This Article’s structure is straight forward. Part I acquaints the reader with the problem. It explains why the need to develop a management regime for space is becoming increasingly critical as advancing technology is allowing more and more private commercial interests to play at the edge of outer space with attendant negative externalities. 14 Soon these technological advances will allow private commercial interests to invade outer space with the potential for similar adverse impacts.15 Part II examines the international legal framework governing those activities and finds it lacks any capacity to regulate activities in outer space, in part because it is riddled with ambiguities and contradictions when it comes to ownership of outer space and its resources. Part III turns to that problem by discussing two types of property: private property and property owned in common with others. It examines the key features of each as well as their positive and negative attributes, how each might function in outer space, and what the consequences might be if one or the other prevailed. Because any property arrangement that results in its appropriation by the owner and the exclusion of others violates international space law, Part III also identifies various less-thanfull fee property arrangement, like leases and easements, to see if these problems can be avoided and concludes they cannot.16 It then examines property held in common to determine its viability under international space law and finds it consistent. Part IV investigates various approaches to managing property in outer space, be it held in private ownership or in common. Different approaches for managing private property in space are explored, including the right of first possession, tradable property claims, and establishing an exclusive economic zone, as well for managing an open access commons, such as the application of stewardship principles, norms, and the PTD. Each approach is evaluated in terms of its consistency with international law; its ability to promote and protect a sustainable, equitable, non-monopolistic, non-hostile environment in outer space; its efficiency; and its cost effectiveness. Only the PTD, which has been used for centuries to protect the public’s interests in CPRs and has demonstrated its ability to adapt to new circumstances, may be able to meet these goals.17 This Article finds commonalities between outer space and Earth-bound public trust resources, like the oceans. Additionally, the doctrine’s open access purpose resonates with language found in international treaties governing activities in outer space.18 This Article concludes that using the PTD will lead to a durable, equitable management regime in a commons where the wealthy are neither able to accumulate and control the resources that outer space has to offer nor over-exploit and deplete them.
Sustainable development solves debris, resource wars, and a laundry list of impacts.
Aganaba-Jeanty 16 (, T., 2016. Space Sustainability and the Freedom of Outer Space. online Taylor and Francis. https://www.tandfonline.com/doi/full/10.1080/14777622.2016.1148463
Definitions of space sustainability The Secure World Foundation defines space sustainability as “ensuring that all humanity can continue to use outer space for peaceful purposes and socioeconomic benefit.”39 It is also described as “the ability of all humanity to continue to use outer space for peaceful purposes and socioeconomic benefit over the long term.” It is proposed that, read together, these broad definitions take as their premise that: (1) all humanity thus far is using space for peaceful purposes and for socioeconomic benefit; (2) this use is threatened; (3) measures must be taken to protect it; and (4) all humanity currently possesses the ability, in the sense of having a skill or the capacity, to ensure space sustainability for peaceful purposes. Under this conceptualization, the negative effect of not using space sustainably is primarily economic.40 Bearing in mind the governmental origins of space exploitation, where market economics did not play a primary role in decision making, the growing focus on the economic perspective in space affairs acknowledges Carolyn Deere’s opinion that problems emerge in the international domain from an absence of powerful economic interests.41 Of course, as more space applications are developed, economic interests become more prevalent in that market protectionism then underlies the rationales for many positions taken. Space sustainability is also conceptualized as defining good behavior, its boundaries, and disincentives for negative behavior in space.42 Space sustainability then becomes a much more limited political concept calling for specific measures to strengthen norms.43 Some notable examples follow: An International Code of Conduct—the European Union proposed a non-binding voluntary code whose purpose is “security, safety, sustainability” for all space activities providing for general measures on space operations and space debris.44 The Scientific and Technical Subcommittee of UNCOPUOS working group objective of establishing guidelines for the long-term sustainability of outer space activities. Proposed International Civil Aviation Organization for Space—the establishment of an international organization focused on space safety and the establishment of binding safety standards similar to the International Civil Aviation Organization.45 Industry efforts for a global space situational awareness database Group of Governmental Experts (GGE) on Transparency and Confidence Building Measures. Depending on the forum for discussion and in line with the previously mentioned initiatives, the concept of space sustainability is also used interchangeably with the following: (1) space security, which entails access to space and freedom from threats;46 (2) space stability addressing space situational awareness;47 (3) space safety, which is protection from all unreasonable levels of risk (primarily protection of humans or human activities);48 and (4) responsible uses of space.49 These all reflect the two components of space sustainability as described by the founder of Secure World Foundation: “the first is the physical environment, which includes management of space debris, electromagnetic and physical crowding and congestion, and space weather.... The second component is the political environment, and includes promoting stability and preventing conflict between nations.”50 Bearing this in mind and notwithstanding the potential confusion caused by the interchangeability of terms used, at the core of all proposals conceptualizing space sustainability or related concepts are the notions that: (1) space assets are kept safe and secure, and that the assets are not harmed or interfered with; (2) peaceful space activities continue as free from purposeful/intentional or unintentional harmful interference; (3) the space environment is preserved for peaceful uses; and (4) international cooperative efforts are required. These four points are understood to be the current core conditions for and of space sustainability. It must be acknowledged that space sustainability, in this context, is severed from the ecological roots of sustainable development. Rationale for space sustainability The proposed baseline conditions for the current conception for space sustainability coincide with Gallagher’s analysis of the logic for space cooperation as “Space Governance for Global Security” where all space actors seek “to secure the space domain for peaceful use; to protect space assets from all hazards; and to derive maximum value from space for security, economic, civil, and environmental ends.”51 Based on this understanding, the current conception of and rationale for space sustainability ties more clearly to global security than to sustainable development. This logic emphasizes that “the more different countries, companies, and individuals depend on space for a growing array of purposes, the more they need equitable rules, shared decision-making procedures, and effective compliance mechanisms to maximize the benefits that they all can gain from space, while minimizing risks from irresponsible space behaviors or deliberate interference with legitimate space activities.”52 While it is acknowledged that such a need exists, the difficulty in reaching agreement on how to bring it about is one reason why some states are more focused on producing a dialogue on long-term sustainability. This is seen in the proliferation of reports outlining best practices and options that enhance sustainability through increased information sharing, as well as a focus on technical issues rather than on the creation of any new legal regimes. To minimize some of the risks of non-sustainable space use, Weeden53 proposes a three-pillar technical approach to space sustainability: (1) debris mitigation; (2) debris removal; and (3) space traffic management. This is conjoined with an immediate need for data in support of conjunction assessment and collision avoidance. This emphasis on data sharing/collection includes enabling research into potential solutions to the problem of space debris, and enhancing transparency and cooperation among states. Weeden also suggests that this narrow approach to space sustainability serves both to educate space actors about the severity of the space debris problem and to provide stability to reduce the likelihood of conflict. A common approach to data also serves as verification for a potential code of conduct in space, setting the stage for future space governance models. These proposals follow the logic of sustainability for global security. While this logic is in line with the dominant conceptualization of benefit sharing and freedom of outer space, the position taken in this article is that it does not adequately speak to sustainability from the perspective of aspirant space states. To do so requires a significantly broader discussion and solutions aimed towards aligning space law and policy with the sustainable development paradigm, if understood as being an inclusive paradigm and not focused on the individualistic/self-interested nature of the current conception of sustainable development. A systemic, sustainable development law approach calls for a conscious engagement with the web of overlapping social, environmental, cultural, and legal frameworks, as well as cultural considerations, economic policies, expectations, players, and interests.54 Bearing in mind current U.S. space policy,55 such a broad overarching objective may not be achievable as part of the dialogue on the “Long Term Sustainability of Outer Space Activities,” but U.S. policy regarding preservation of the space environment nevertheless offers insights because international initiatives congruent with it are likely to garner the most support. Schrogl56 proposed that sustainability is rendered to threats and risks to satellite operations. This approach acknowledges the intersection of multiple issue areas: environment, security, mobility, knowledge, resources, and energy. This intersection of issue areas is more akin to the wider discourse of sustainability development of and on the Earth, and prompts a discussion of value to emerging and aspirant space actors.