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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. Near-space is rapidly filling up with public and private satellites, causing electromagnetic interference problems and dangerous space debris from collisions and earlier launches. 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. 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.

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. But, they left development of a system for managing non-military activities in outer space to another day. 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. These interests, unsurprisingly, support privatizing outer space. 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.

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. 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. An examination of the doctrine identifies commonalities between outer space and terrestrial public trust resources. 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.

Publication Citation

Syracuse Law Review, Vol. 69, No. 2, 2019.