At the Galloway Symposium on December 13, 2017, Dr. Scott Pace, the Executive Secretary of the National Space Council gave a keynote address at the luncheon. The Galloway Symposium is an annual conference of space law practitioners, law professors, and other interested persons. Amongst the many other heartening things Dr. Pace said, he explained that space is not a global commons:

Finally, many of you have heard me say this before, but 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 concepts are not part of the Outer Space Treaty, and the United States has consistently taken the position that these ideas do not describe the legal status of outer space. To quote again from a U.S. statement at the 2017 COPUOS Legal Subcommittee, reference to these concepts is more distracting than it is helpful. To unlock the promise of space, to expand the economic sphere of human activity beyond the Earth, requires that we not constrain ourselves with legal constructs that do not apply in space.

In 2015, Professor Henry Hertzeld of George Washington University and Christopher Johnson and Brian Weeden of the Secure World Foundation addressed this topic in Simple Terms Mislead Us: The Pitfalls of Thinking of Outer Space as a Commons. A more comprehensive version is available here, but it may lurk behind a paywall. In their article they discuss how we shouldn’t think of space as a commons and that what really constitutes the “province of all mankind” is not outer space itself but the activity of exploring and using it. This was an eye opener for me.

First, they start with the text of Article I of the Outer Space Treaty, which says:

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 and scientific development, and shall be the province of all mankind. Outer Space, including the Moon and other celestial bodies, shall be free for exploration and use by all States without discrimination of any kind, on a basis of equality and in accordance with international law, and there shall be free access to all areas of celestial bodies.

In explaining this language they note that it is exploration and use that is the province of all mankind:

Consequently, it is not the physical domain of outer space itself— the three dimensional expanse, beginning above airspace and extending infinitely outwards–which is the province of all mankind, but the activity itself, the “exploration and use” of outer space, which is addressed. This subtlety seems all too often lost on those whom believe that space (both void space and celestial bodies) somehow belongs to humanity. Rather, the exploration and use of space (both void space and celestial bodies) is free to be explored and used by States Parties to the treaty. Because the OST has been ratified or signed by all space-faring nations and this particular provision in Article I considered to have risen to the level of customary international law, all States across the world (and by inference, all peoples), enjoy this privilege to explore and use outer space. All too often, commentators and pundits remark that outer space itself belongs to everyone. It is in fact just the opposite. Space itself belongs to no one and the right to access, explore, and use space is granted to everyone.

They also note in passing that the Moon Treaty is of historical interest only. The Moon Treaty serves as the source of the notion that the Moon and its natural resources are the “common heritage” of mankind. It, however, is what the authors describe “as a failed exercise in treaty-making.” Only 20 nations signed it, and none of those able to reach the Moon did so.

Although the authors do not provide a full description of the development and uses of the term “commons” what they describe proves helpful. It is worth reading the whole discussion, which starts on page 5. By Roman times, which was where all that Latin comes from, there were many forms of property:

whether property was in commercio or extra commercio, and if it was outside of commerce, whether it was res divine (in the control of the gods), res publicae (things open for public use and regulated by the government and not available for private ownership), res omnium communes (things legally not property because they were incapable of dominion and control); and res nullius, (things not possessed by an individual but capable of possession).18 Beyond these categories there are others, including various servitudes, which are similar to what we currently call easements, the right of a person to use another’s property. Similarly in English Common Law, the development of common areas was complicated…

The authors point out that outer space does not meet the criteria under which these terms apply:

all of these legal concepts of a commons need (1) a sovereign power to grant the territory to open use and to then grant whatever limited property rights are necessary for the continued existence of the commons over time, (2) an area of land or a region with well-defined borders, and (3) an economic foundation that requires or facilitates some basic human need (often food) that is more productive or efficiently performed collectively. They note that outer space has none of these things. Article II of the Outer Space Treaty prohibits claims of sovereignty. Border are not well defined, and the terrestrial economy does not need outer space to survive. Finally:

there is a logical contradiction in this discussion about outer space being treated as a commons. If a commons needs a sovereign government to grant the open territory to the use of all people, it is that government that has to oversee, regulate, and enforce that charter. Art. II of the OST prohibits national sovereignty in outer space. Thus, it is an area without a government. Even if all nations regard outer space as a “commons,” it is a very different concept from any commons that has been established in the past. There is no real legal precedent, no true means of oversight or enforcement, and therefore should not be confused with any of the many ways that concept has been applied to the territory or oceans of the Earth.

Why does all this matter? Is it because of the tragedy of the commons (aka “the tragedy of the bunnies“)? Or, is it because treating outer space as a commons provides a disincentive to private investment?