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Tragedy of Commons in Outer Space - The Case of Space Debris
Abstract
The state’s right to outer space is far from clear delimitation. Outer space is a typical commons, which means every sovereign state has the right to use the outer space and no state has the right to exclude others from using the outer space. The logic of tragedy of commons equally applies in outer space which means the resource of outer space will inevitably be over-used - for example, the space debris. Space debris is the collateral pollution of the exploration of outer space, which can be categorized in negative externality. The article seeks to frame the space debris problem in perspective of basic property theory. The current right regime under UN-based multilateral treaties will be the outset and the implied background of the entire inquiry. Part II focuses on the incentives provided by the property rights regime and then the externality explanation of space debris as a result of overuse of outer space. Part III comes to the dilemma of international collective action to the mitigation of space debris. The core issue is that the damage space debris caused is so far less than coordination cost of international collective action. In other words, space debris problem is not so urgent in current status of technology. This article concludes by discussion of the role of technology and some other parameters that may be influential to or even decisive in the international cooperation of space exploration and debris mitigation.
... A resource that everyone could benefit from is spoiled because no party has a strong incentive for conservation or protection. In space, every sovereign state has the right to use Earth orbit and no state has the right to exclude others from using it (Wang, 2013). Sometimes, the problem is compounded by bad actors. ...
... Beyond the ambitions of states, New Space has also meant that more states and private companies have been able to access space, led by a significant reduction in launch costs over the last decade (Shammas and Holen, 2019). This brings about its own issues, notably concerning the potential (and now likely) scaling up of space sector operations which has the potential to lead to a 'tragedy of the commons' type of scenario playing out in space (Wang, 2013). ...
The recent growth of the space sector, spurred by a surge in private actors, has led to a sharp increase in our ability to address societal challenges through space data. However, this has exacerbated an already critical situation in space: the proliferation of space debris and a critical expansion of space traffic which is leading to high levels of orbital congestion. In parallel, increased levels of spacecraft production and orbital launches are also heightening the environmental footprint of the sector. This might lead to a paradoxical situation whereby the use of space to support the Sustainable Development Goals (SDGs) becomes unsustainable from the perspective of both the Earth and space environment. This situation can be described as the ‘space sustainability paradox’. This paper presents this concept for the first time and argues that existing policies and remediation actions are not a long-term sustainable solution for tackling this issue and may actually intensify the problem. This places an added importance upon addressing space sustainability in a more coherent, strategic and responsible manner, potentially based on the doughnut economic model of social and planetary boundaries. Doing so may prevent the sector from falling victim to a ‘tragedy of the commons’ type of scenario and avoid negative trends from becoming the norm. As a result, this would ensure that outer space can continue to be used by future generations to address societal challenges, without priming severe and enduring damage to the Earth and space environment.
At the heart of this paper are judges and their obligations to ensure that conflicts over fragmented rights are cured, that fundamental rights are stewarded, and that justice prevails. There are several respected legal theories that have never been examined together before, but when three of them are placed in a nexus of constitutional law, we find that these ideas support broad powers for courts to control the distribution and allocation of rights, enabling the resolution of conflicts at many social levels. First, a succession of scholars has identified the risks of ‘fragmenting rights’, of allocating overlapping rights to too many parties. The danger presented is that those rights-holders may lose the use of their legal rights or privileges; this outcome is known as the ‘Tragedy of the Anticommons’. Too many rights held by too many parties, a ‘fragmentation of rights’, can lead to a lack of access to rights and a lack of access to justice. Second, the legal theories of Nobel Laureate Ronald Coase, who found that initial allocations of rights across a community might have been allocated in a manner that frustrates negotiations and other means to avoid conflicts; but judges have an opportunity and an obligation to reset those allocations of rights to better enable society toflourish. Third, Yale constitutional scholar Robert Cover wrote that judges can and should terminate claims of overlapping rights so that the litigious parties, and society at large, can return to a more harmonious co-existence. Cover wrote that this methodology of ‘jurispathic’ judges was both an ethical and a robust means of solving Dworkin’s ‘hard cases’. This paper investigates the nexus of these three jurisprudences and what the impact of their nexus is for constitutional scholars. This paper delivers original theoretical legal findings and provides functional approaches to best enable the resolution of conflicts before courts and the maintenance of rights and privileges for all parties. This paper documents an argument that courts, especially constitutional courts, have more power to solve social conflicts and other conflicts arising from legal rules and culturesthan many constitutional law scholars may have previously assumed feasible.
Elsewhere in "Rethinking Terra Nullius and Property in Space", I have argued that due to the changing circumstances of access to space by private entities rather than governments, the current legal situation with regard to ownership in space should be reconsidered. As it stands, ownership in space is governed by international law and currently private and even national ownership of celestial bodies is prohibited. While (controversially) arguing for the recognition of private ownership in space, I constantly have to field questions surrounding the pragmatic assertion that since international law and United Nations treaties and conventions prohibit ownership in space, there can be no development that will allow for this. Hence, while not abandoning my purely property law-oriented arguments for recognising private ownership in and on celestial bodies, I will maintain my arguments for property rights in space and analyse a number of differing options available to private entities who would like to acquire property rights in space. As such, I purposefully avoid the maligned terminology of "ownership", and rather look at various other options that still give the intrepid celestial entrepreneur some sort of property right, or even a property-like protection of their interests in space. Some examples include concessions, mining licences, prospecting rights, and certain contractual rights that could benefit from property-like protection. The thesis is that even if ownership of celestial objects is not accepted due to the existence of various problematic dogmatic viewpoints, one would still be able to achieve much the same effect by using other property mechanisms.
Elsewhere in "Rethinking Terra Nullius and Property in Space", I have argued that due to the changing circumstances of access to space by private entities rather than governments, the current legal situation with regard to ownership in space should be reconsidered. As it stands, ownership in space is governed by international law and currently private and even national ownership of celestial bodies is prohibited.
While (controversially) arguing for the recognition of private ownership in space, I constantly have to field questions surrounding the pragmatic assertion that since international law and United Nations treaties and conventions prohibit ownership in space, there can be no development that will allow for this. Hence, while not abandoning my purely property law-oriented arguments for recognising private ownership in and on celestial bodies, I will maintain my arguments for property rights in space and analyse a number of differing options available to private entities who would like to acquire property rights in space. As such, I purposefully avoid the maligned terminology of "ownership", and rather look at various other options that still give the intrepid celestial entrepreneur some sort of property right, or even a property-like protection of their interests in space. Some examples include concessions, mining licences, prospecting rights, and certain contractual rights that could benefit from property-like protection.
The thesis is that even if ownership of celestial objects is not accepted due to the existence of various problematic dogmatic viewpoints, one would still be able to achieve much the same effect by using other property mechanisms.
Many of our modern views about property, and indeed about political and economic matters generally, come from the works of seventeenth and eighteenth century theorists who hoped to find a firmly scientific basis for the study of "political economy." Their systematic approach suggests that these theorists' accounts of property might be purely analytic—"synchronic" as the linguists call it. An account of this sort would treat the subject as if all its parts occur at once, in an interlocking whole whose various aspects can be inferred logically and verified empirically, without reference to origins or to transformative changes over time. On such an account, one might indeed perceive that things change as time passes, but if one has a proper grip on the overall analytic framework, any changes would occur according to set patterns, so that future states are predictable from past states. This would be, more or less, a scientific approach: all changes in a given system are predictable from a proper synchronic analysis of the system itself.