The Common Heritage of Mankind: Out of this World.

By Drew Hargrove

Space law, at a tropospheric level,[1] is not so different from other sources of international law. The vast majority of space law is largely governed by various treaties, declarations, and legal principles.[2] The very first treaty, the Outer Space Treaty of 1967, laid the groundwork for international relations in outer space, including a declaration that States shall be free to explore the unknown.[3] In the years following, other treaties have been formed,[4] and space law has continued to slowly evolve. While “major developments in space law were triggered, as a rule, by important developments of space technology, . . . the effect, however, has not always been proportional to the cause.”[5] So another similarity, one might synthesize, is the political influence, as “[i]t [was] the political will of the international community or of one or more of the leading actors” that created these speedy developments.

An almost obvious difference between space laws and other laws, however, is the uniqueness of the subject matter. Space law governs the exploration and use of outer space. When expressed in a single, solitary sentence like this, this notion of governing outer space might not seem overly significant. As you may be thinking – it’s not like we have to give Han Solo a ticket for speeding, as he loves to take the Millennium Falcon out for a spin at light speed. And in a sense, this is true; we obviously do not have a thriving population in outer space to govern or supervise.[6] But as we, the human race, continue our discovery and exploration, reaching (literally) new heights, the principle of governing outer space is becoming more and more important.

One of the most intriguing areas of this governance is the concept of the Common Heritage of Mankind. This concept was first introduced outside the context of space law in the preamble of the Hague Convention for the Protection of Cultural Property in the Event of Armed Conflict.[7] In the international context, this was first addressed in the Outer Space Treaty of 1967.[8] Section one, in its entirety, reads as follows:

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 or 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. There shall be freedom of scientific investigation in outer space, including the moon and other celestial bodies, and States shall facilitate and encourage international co-operation in such investigation. (Emphasis added).

The Common Heritage for Mankind appears again in 1979 in the Moon Treaty. This treaty “attempted to mirror the same visionary style approach used by the Outer Space Treaty.”[9] Article 11 of the Moon Treaty requires that “[t]he moon and its natural resources are the common heritage of mankind. . .”[10]

So what exactly is the Common Heritage of Mankind? One of the most fascinating aspects of this concept is that it does not have a universal definition.[11] However, many definitions use the following factors:

  1. Non-Appropriation
  2. Common Management
  3. Benefits Sharing
  4. Peaceful Purposes
  5. Preservation for Future Generations[12]

At this point you are probably wondering: What’s the point? The point, and what makes this concept so interesting, is the fact that it’s still unclear how it applies in the space law context. In the heat of the Cold War, the United States refused to ratify the Moon Treaty. In essence, Frakes concluded, “developed nations [seemed] to believe that the private capitalization of outer space resources [was] not at odds with using space for the benefit of all mankind.”[13] On the other hand, developing nations argued that “capitalization does not correspond with the values of the common heritage principle.” The Common Heritage for Mankind requires common management. Does, therefore, this disagreement over the Moon Treaty prevent the Common Heritage of Mankind from applying to the Moon and its natural resources?

If nothing else, this post is simply a call for clarity in terms of international space law. This disagreement will not be restricted to simply the Common Heritage for Mankind principle. Technology development is not dwindling; new types of satellites and drones are designed more and more frequently. A clear and concise law for outer space governance will give countries guidance and better allow them to settle meaningful disputes.

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[1] Pun intended.

[2] The United Nations Office for Outer Space Affairs, http://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties.html.

[3] Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, Including the Moon and Other Celestial Bodies art. 6, adopted Jan 27, 1967, 18 U.S.T. 2410, 610 U.N.T.S. 205 (effective Oct. 10, 1967).

[4] See GA Res. 34/68 (Dec. 5, 1979), reprinted in 18 ILM 1434 (1979), Agreement Governing the Activities of the States on the Moon and Other Celestial Bodies art. 11.

[5] Lubos Perek, Interaction Between Space and Technology and Space Law, 18 J. of Space L. 19, 20 (1990).

[6] Not to mention, the sheer size of space makes it difficult to monitor. Just ask Billy Bob Thorton’s character in Armageddon. See Tony Rice, Begging your pardon sir, but it’s a big ass sky, Youtube (Oct. 21, 2015), https://www.youtube.com/watch?v=KhbF7C317Yg (From the movie Armageddon).

[7] Convention for the Protection of Cultural Property in the Event of Armed Conflict with Regulations for the Execution of the Convention 1954, May 14, 1954, Pmbl (“Being convinced that damage to cultural property belonging to any people whatsoever means damage to the cultural heritage of all mankind, since each people makes its contribution to the culture of the world”).

[8] See, supra note 3.

[9] Jennifer Frakes, THE COMMON HERITAGE OF MANKIND PRINICLE AND THE DEEP SEABEND, OUTER SPACE, AND ANTARCTICA: WILL DVELOPED AND DEVELOPING NATIONS REACH A COMPROMISE?, Wis. Int’l L.J. 409, 423 (2003).

[10] See, supra note 4.

[11] Frakes, supra note 9. at 411.

[12] Id. at 411-13.

[13] Id. at 425.