U.S. – China Student Space Law Symposium: Enlightened State Interest – A Legal Framework for Protecting the “Common Interest of All Mankind” from a Hardinian Tragedy

March 3, 2010 at 3:09 pm | Posted in Blogcast, Space Law | Leave a comment

by P.J. Blount with the blog faculty

Mr. Nicholas Welly, University of Mississippi School of Law, presented Enlightened State Interest – A Legal Framework for Protecting the “Common Interest of All Mankind” from a Hardinian Tragedy. Welly began by pointing out that space is a global commons and as such the the theory of the tragedy of the commons is applicable when discussing space debris issues.

He began by discussing the concept of space as a global commons or a res communis. This is because space cannot be claimed and private ownership rights have been extinguished via the space law regime. He pointed to the numerous communal concepts found in the Outer Space Treaties as evidence of the global commons. However, he stated that economics are relevant to outer space and that it functions very much like a market via the international relations that occur there that are analogous to transactions in private markets. He stated that law and economics is a normative concept that tells one “what ought to be” if the goal is “efficiency.” It does so by seeking to eliminate externalities and by assuming that there are rational actors engaging in the market.

He then turned his attention to the space debris problem. He stated that historically, space activities were conducted without regard for the costs that were associated with debris. He noted that all States bear the risk of collision with debris, whereas space-faring nations do not bear the entire cost of there debris making activities. He stated that there has been a substantial increase in near-Earth orbit debris, yet the law is essentially silent with regard to specific space debris rules. He also discussed the Kessler Syndrome in which a clouds grow as they collide with each other, which could eventually preclude human activities in space. He compared this to the Tragedy of the commons wherein legal and social constraints keep costs artificially low allowing individuals to increase consumption without limitations which can destroy a commons as a result self interested decision.

Welly pointed out that there are two traditional solutions to the Tragedy of the Commons. The first is private property rights, which Welly said was off the table for space due to the legal regime. The other was centralized control of the common resource, which he said would look like a treaty in this context. Welly, then pointed to a third option which he deemed “enlightened self interest,” wherein an individual approaches a commons as something to be preserved for all which then preserves the individuals self interest. Welly said that in relation to space debris, this would look like voluntary guidelines.

The current model for this are the Space Debris Mitigation Guidelines released by the IADC. He noted these guidelines were not binding legal mechanisms. He noted though that the nonbinding guidelines can cause states to restrict themselves and help build consensus. He noted that enforcement, ambiguity, and interpretability issues could prove to be shortcomings to such regimes.