Building a Durable Legal Framework in Space: The Extraterrestrial Impact of the South China Sea Dispute

Written by Roncevert Ganan Almond.

Just a few weeks ago, tech titan Elon Musk announced his lofty intention to send the first colonists to Mars by 2024.  The precise estimate may be ambitious, but technological advances and commercial interest will soon transform human exploration and use of space, triggering a host of novel legal and political questions.  If we are to answer these questions successfully and peacefully, scholars, practitioners, and policymakers need to begin thinking about them now.

This will be no small task, particularly because much of the legal framework governing space is decades old, developed during a different era.  Indeed, this year marks the 50th anniversary of 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”).  Despite limitations set forth in the Outer Space Treaty, leading space-faring countries such as the United States are increasingly approaching space as a common domain for strategic competition.

Even as technology can propel us beyond the boundaries of our earthly domain, we cannot escape our human nature and the attendant consequences.  However, the international community can learn from and improve upon our history by anticipating the coming legal and geopolitical debates in outer space.  Below, I argue that recent experience in the South China Sea dispute may be instructive in anticipating the challenges ahead.  In particular, I argue that the dispute suggests five key lessons about domains beyond national boundaries—lessons that are directly applicable to outer space.

1) Increased Proprietary Claims, Facilitated by Technological Advancement

First, we can expect the propagation of proprietary claims in shared domains, despite (and to the detriment of) legal norms to the contrary.  These claims will be driven by the exercise of the freedoms of use and exploration, as well as the increased utilization of shared domains, as enabled by technological advancement.

The high seas freedoms, like navigation, and the prohibition on sovereign appropriation of the high seas, have long been recognized as customary international law.  But these norms have been subject to contestation.  During the Western age of exploration, Grotius, Freitas, Selden and others debated whether high seas freedoms were fundamental, or whether the increased capacity of States to exert control at sea permitted sovereignty claims over “territory” traditionally thought to be beyond national jurisdiction. These debates were made possible by advanced technology—the ocean-fairing ships, the chronometer and the cannon—that allowed States to exert dominance and control in the high seas.

The United Nations Convention on the Law of the Sea (UNCLOS) represents a historic attempt to resolve this tension between technologically-enabled use of the seas and attempts to preserve the “common heritage of mankind”; the South China Sea dispute reflects that tension’s endurance.  After decades of negotiation, UNCLOS, with its 1994 supplement, was adopted as a “constitution for the oceans” in order to “settle all issues relating to the law of the sea,” including in relation to sovereign rights beyond national boundaries.

On January 22, 2013, the Philippines commenced arbitration proceedings under Annex VII of UNCLOS to challenge China’s territorial claims, based on historic title, to nearly the entirety of the South China Sea.  After lengthy deliberations, on July 12, 2016, the arbitral tribunal ruled that China’s so-called “nine-dash line” claim was contrary to the Convention, which “superseded any historic rights, or other sovereign rights or jurisdiction in excess of the limits imposed therein” (para. 278).  In effect, the tribunal upheld the bargain on the allocation of rights to maritime areas negotiated by States Parties to UNCLOS—which include China and the Philippines (but not the United States, despite the strategic benefits of U.S. treaty ratification).

From a substantive legal perspective, this aspect of the arbitral award was an easy one.  The UNCLOS regime codifies the progressive development of the law of the sea, provides a highly-detailed structure of maritime entitlements, and reflects an accepted—if tenuous—political consensus, notwithstanding China’s exceptional claims in the South China Sea.

By contrast, it is difficult to imagine a comparably straightforward legal answer based on the Outer Space Treaty.  Its terms—which similarly seek to enable and constrain human activity in a shared domain—are sparse, dated, and increasingly contested.  The Outer Space Treaty, for instance, broadly establishes the freedoms of exploration and use of outer space, while banning any claims of national appropriation in outer space, including with regard to the Moon and other celestial bodies.  But these general “principles” were drafted relatively quickly, within a decade of Sputnik-1’s launch, at the beginning of the Cold War’s space race.  Overall, the Treaty’s principles lack the qualities leading to “compliance pull” as described by the legal scholar Thomas Franck, particularly with respect to determinacy (clarity in terms), adherence (interpretation and implementation through secondary rules), and symbolic validation (a deep-rooted, history-conferring status).

The indeterminate guidelines of the Outer Space Treaty will likely prove insufficient to address evolving proprietary claims driven by emerging “new space” technology.  The persistence of China’s claims, despite comparatively clear legal principles in the context of UNCLOS, is instructive.  We can confidently predict that the freedoms of exploration and use will encroach upon legal norms designed to preserve outer space as a global commons, such as the prohibition on national appropriation.

2) Novel Legal Claims Arising From Legal Uncertainty

Second, resolving legal uncertainty arising from new and competing claims in shared domains will require the fresh negotiation of defined sovereign and economic rights.  This deliberation must begin sooner rather than later.

Among other findings, the tribunal in the South China Sea arbitration determined that China unlawfully interfered with the enjoyment and exercise of the Philippines’ sovereign rights with respect to the living (fishing) and non-living (extractive) resources of its exclusive economic zone (EEZ) and continental shelf, as defined under UNCLOS.  These maritime zones reflect a compromise between maritime powers and coastal States, as noted by the tribunal in the South China Sea arbitration.

Specifically, UNCLOS’ maritime zones resulted from efforts to mitigate the “unregulated propagation of claims to maritime rights and jurisdiction” and “the prospect that technological developments would rapidly enable the greater exploitation of the resources of the seabed, which would fall to those States most capable of claiming them” (para. 249).  The legal certainty and rights in the traditional high seas gained by coastal States came with conditions.  Functional jurisdiction in the EEZ, for example, is subject to limitations, such as respect for the freedoms of navigation and overflight of other States.

As the South China Sea dispute indicates, these issues are not completely resolved, in part because maritime disputes are linked to land disputes.  Maritime zones are based on the principle of “la terre domine la mer” (the land dominates the sea), as noted by the International Court of Justice (ICJ) in the North Sea Continental Shelf Cases.  For example, the EEZ extends no farther than two-hundred nautical miles from the coastal State’s baseline from which the breadth of the territorial sea (twelve nautical miles) is measured, so controlling the land means controlling the rights at sea.  But what “land” counts?

During the South China Sea arbitration, the tribunal concluded that none of the Spratly Islands were “fully-entitled islands” generating maritime zones like EEZs.  As such, the Philippines’ EEZ did not overlap with a competing Chinese EEZ in the South China Sea.  In reaching this decision, the tribunal performed a technical analysis of whether certain Chinese-claimed maritime features were naturally formed “islands” or mere “rocks” unable to sustain “human habitation” or “economic life.”  In effect, Chinese-claimed “land” in the South China Sea could not trump Philippine maritime entitlements under UNCLOS.

One can easily envision similar definitional debates with regard to human activity on celestial bodies like asteroids.  But what will be the terms of this debate?  If the land dominates the sea in maritime law, how will the Earth dominate space in space law?  In other words, what methodology will we employ to address the unregulated propagation of claims to outer space and its resources?  These questions are no longer theoretical.

In November 2015, for example, President Barack Obama signed into law the Space Resource Exploration and Utilization Act, which created new property “rights” for U.S. citizens to space and asteroid resources.  Planetary Resources, the asteroid mining venture funded by Silicon Valley giants like Google’s Larry Page, has called the U.S. law the “single greatest recognition of property rights in history.”  During his tenure, President Obama actually put America first in an unprecedented manner.  Other States are following this example.  In July, Luxembourg enacted an asteroid mining law that builds upon the U.S. example.  At the recently-convened International Astronautical Congress (IAC), ispace Europe, S.A., based in Luxembourg, described its goal of establishing exclusive “safety zones” on celestial bodies to ensure a return on investment.  Traditional energy powers like Saudi Arabia and the United Arab Emirates are also considering asteroid mining laws.

These novel legal claims seek to maneuver through a perceived loophole in the Outer Space Treaty’s ban on national appropriation, which would only prohibit sovereign “occupation” of celestial bodies, as opposed to private “extraction” of their resources.  Based on the South China Sea dispute and debate over maritime zones, it is doubtful that such legal schemes will reflect the ultimate political consensus on exploitation of space resources.  This conclusion is even more evident in light of the potential wealth and strategic benefits at stake.   

3) Militarization and Enforcement

Third, States will rely on military power in order to enforce contested claims and competing rights in shared domains.  A related corollary is that security interests soon follow economic interests.

One of the key issues in the South China Sea arbitration was China’s extensive island-building activities.  The tribunal’s analysis of China’s land reclamation and fortification efforts was revealing.  In order to retain jurisdiction, the tribunal relied on Beijing’s assertions that its actions were for civilian purposes.  Given the potential dual-use nature of aircraft runways and other installations, this was a credible, if thin, line of reasoning.  At the same time, the tribunal took Beijing to task for escalating construction activities in response to the proceedings and for permanently altering features within the Philippines’ EEZ.  It was evident to all that in the face of a legal challenge, China was willing to resort to the threat of force to impose its claims.

In return, the United States has stepped up the pace and depth of its military maneuvers to challenge excessive maritime claims in the South China Sea.  These Freedom of Navigation operations (FONOPs) implement Washington’s long-standing policy of exercising and asserting its freedom of navigation and overflight rights in international waters and airspace, respectively.  For instance, on May 24, 2017, the U.S. Navy destroyer USS Dewey conducted a FONOP within twelve nautical miles of Chinese-controlled Mischief Reef in the Spratly Islands.  This exercise was clearly “non-innocent”—involving military maneuvers—and effectively enforced the arbitral tribunal’s finding that the aptly-named Mischief Reef was a “low-tide elevation” and, therefore, was not entitled to a twelve nautical mile territorial sea under UNCLOS.

In both instances, China and the United States are seeking to protect their respective economic interests in the region.  For Beijing, the military build-up serves as an armed defense of Chinese fishing interests and the prospective extraction of oil and natural gas from the sea bed below.  For Washington, force projection in the South China Sea ensures that the world’s most important trading lane remains open for business.  This all occurs in the face of clear terms in UNCLOS reserving maritime domains for peaceful purposes.

The Outer Space Treaty similarly attempts to reserve outer space for “exclusively” peaceful purposes.  The Treaty prohibits weapons of mass destruction, weapons testing, military installations, or military maneuvers in outer space.  But if the economic interests of great powers are challenged—like in the instance of competing rights for space resources—such rules will fall by the wayside.  And given the dual-use nature of space technology, the militarization of space may occur under the color of civilian purposes.

The United States is increasingly approaching outer space as a new sphere for strategic and economic competition.  Earlier this year, President Donald Trump issued an executive order reviving the National Space Council, which had become dormant following the end of the Cold War.  On October 5, 2017, U.S. Vice President Mike Pence convened a meeting of the Council and called for space to be included within U.S. warfare doctrine in light of the growing space threats from China and Russia.  This doctrine will include economic interests: one of the four pillars of a new strategic framework for space warfare outlined by National Security Advisor H.R. McMaster is ensuring that U.S. commercial space companies remain preeminent.  As part of the 2018 National Defense Authorization Act, Congress is debating a proposal to establish a new uniformed service—the “Space Corps”—fully dedicated to addressing emerging threats to U.S. national security in space.  U.S. Secretary of the Air Force Heather Wilson observed that space will no longer be a benign environment; soon it will be a “common domain for human endeavor” and U.S. strategy must respond accordingly.

4) Environmental Impact

Fourth, the expanded use and exploitation of shared domains—and actions to enforce these interests—unavoidably lead to environmental impact.  Norms of State responsibility and due regard are insufficient to prevent this outcome.

The South China Sea arbitration found that China violated its obligation to protect and preserve the marine environment under UNCLOS.  As the tribunal noted, the Convention’s obligations apply to “all States with respect to the marine environment in all maritime areas, both inside the national jurisdiction of States and beyond it” (para. 940).  The tribunal found that China’s land reclamation and construction of artificial islands, installations, and structures in the South China Sea had “caused severe, irreparable harm to the coral reef ecosystem” (para. 1203).

For example, the tribunal observed that prior to Chinese actions, Fiery Cross Reef was mostly submerged in its natural state, with a rock exposed at high tide.  By November 2015, however, approximately 2,740,000 square meters of land had been created at Fiery Cross Reef, with sand and rock dredged from the seabed, covering virtually the entire platform of the southwestern reef flat.  This vast complex includes a three-kilometer runway, a 630,000-square-meter harbor, and related installations to support China’s enforcement of its claims in the Spratly Islands.

Moreover, the tribunal found that China knowingly tolerated, protected, and failed to prevent Chinese flagged vessels from “harvesting endangered species on a significant scale” in instances that were “severely destructive of the coral reef ecosystem” (para. 1203)  In holding China responsible, the tribunal cited the Fisheries Advisory Opinion, issued by the International Tribunal for the Law of the Sea, which clarified that the flag State must ensure its fishing vessels are not involved in activities which will undermine a flag State’s environmental responsibilities under the Convention.

The Outer Space Treaty sets forth standards of due regard and State responsibility for environmental harm, including with respect to continuing supervision of non-governmental actors, similar to those of UNCLOS.  If the South China Sea dispute offers any clues, these norms are unlikely to prevent adverse changes to the environment of outer space and celestial bodies.  Thus, practical tasks for developing space law will involve determining what environmental changes we are willing to tolerate in outer space and identifying the scale to measure the related damages and liability.  The human footprint has already reached the Moon and will soon expand to near-Earth objects.

5) Peaceful Dispute Resolution

Fifth, formal dispute resolution mechanisms are important in order to institutionalize conflicts involving shared domains, but we should expect challenges of jurisdiction, competency, and efficacy.  Ultimately, the peaceful resolution of disputes beyond national boundaries is unlikely without political will.

China refused to participate in the South China Sea arbitration and vigorously challenged—through the publication of a “Position Paper” in December 2014 and in other official statements—the jurisdiction of the tribunal.  The tribunal rejected Beijing’s arguments that the dispute was actually about territorial sovereignty or the delimitation of overlapping maritime zones.  Such subjects would have made the matter beyond the concern of UNCLOS or excluded it from dispute resolution due to a declaration filed by China under the Convention.

As a technical matter of treaty interpretation and construction, the tribunal was correct that the arbitration was not about sovereignty.  However, as I have noted, the tribunal’s supposedly technical conclusions on the status of Chinese-claimed features in the South China Sea seriously damaged China’s sovereignty claims.  As such, Chinese objections, as a political protest against the competency of the arbitral tribunal to practically resolve the dispute, were prophetic.  And yet, these legal setbacks did little to actually restrain China.  Within days following the Philippines’ unilateral instigation of the arbitration, China initiated its large-scale land reclamation and construction program.

In response, the tribunal ruled that China’s “intensified construction” of artificial islands during the course of its proceedings had “unequivocally aggravated the disputes between the Parties” in violation of international legal norms of good faith, non-aggravation, and peaceful dispute resolution (para. 1177).  Having “permanently destroyed evidence on the natural status of features” China had “undermined the integrity” of the arbitral proceedings (para. 1179).  Nevertheless, the tribunal was forced to acknowledge that Beijing’s actions had “created a fait accompli” in portions of the South China Sea, even if in violation of international law (para. 1177).  The UNCLOS tribunal process, therefore, helped to clarify and institutionalize political conflict—even as it ultimately failed to resolve that conflict in accordance with law.

Without significant changes, we can expect even less institutionalization of space disputes.  The Outer Space Treaty still leaves ample room for further development of dispute resolution procedures.  The Treaty does not include any formal dispute resolution mechanism but instead provides for discretionary “consultations.”  Parties are expressly required by the Treaty to act in accordance with the United Nations Charter, which mandates peaceful dispute resolution under Article 2(3).  The UN Charter also provides an array of options, such as negotiation, mediation, conciliation, arbitration, and judicial settlement, with the potential for Security Council intervention or referral to the ICJ.

The institutionalization of territorial and proprietary disputes will be important for identifying key interests, defining legal issues, developing technical expertise, and providing an international spotlight to hold parties accountable.  However, as the South China Sea arbitration shows, formal dispute resolution mechanisms and legal norms of restraint may prove powerless when great powers resort to unilateral action in pursuit of their own national interests.

In short, political will is the critical ingredient.  If we remain clear-eyed about human nature—even amidst the stars—we may yet apply the lessons of history, both recent and decades-old.  That history, and the five principles identified above, will prove crucial in building a durable international legal consensus to govern rapid developments in space.

Roncevert Ganan Almond is a partner at The Wicks Group, based in Washington, D.C.  He has advised the U.S.-China Economic and Security Review Commission and counseled government authorities in Asia, Europe, the Middle East, Africa, and Latin America on issues of international law.  He serves on the Editorial Board of The Air & Space Lawyer and as a contributor to The Diplomat.  This article is based on his remarks and presentation at the 60th International Institute of Space Law Colloquium on the Law of Outer Space at the 68th International Astronautical Congress in Adelaide, Australia.  The views expressed here are strictly his own.

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