Territories beyond possession? Antarctica and Outer Space

Abstract

It is often assumed that Antarctica and Outer Space (In line with international law, this article uses “Outer Space” to refer to both the void between celestial bodies, and the celestial bodies. Although at Roman law – the basis for contemporary international territorial law – land and air are very different types of legal objects, outer space law currently collapses the two into a single legal definition. “Outer Space” is capitalised in this article to emphasise its legal status as a place) are simple, un-owned spaces. To some extent, this is correct: neither of these vast areas of our planetary environment is partitioned into standard state-sovereign spatial units. But it would be naïve to assume, therefore, that Antarctica and Outer Space are therefore exceptional, similar, uncontested spaces of “peace and science,” free from the territorial drives of states and non-state actors such as mining corporations. There are important minerals in both spaces; both spaces have significant strategic value to both states and non-state actors. This article anatomises to what extent Antarctica and Outer Space are un-owned spaces. Whether they are terra nullius – land owned by no one – or terra communis – land collectively owned by humanity – remains a fundamental tension in the international laws and treaties that produce them as legal geographies (Collis, “The Geostationary Orbit”). This article studies the legal geographies of these related spaces, highlighting the congruencies and the differences between them. In doing so, it explains not only the nature of terra nullius and terra communis today, but also analyses the ways in which these “non-territories” comprise a notable component of contemporary geopolitics. Antarctica comprises seven huge, “frozen” state territorial claims, established and maintained by formal state practices of “effective occupation.” The geostationary orbit is partitioned into spatial segments, or arcs, assigned to states; the status of non-state actors in Outer Space remains the subject of substantial speculation and discussion. As minerals in the accessible areas of Earth become more scarce, and as technology makes mineral extraction and military use of uninhabitable spaces increasingly feasible, it is crucial that discussions of their futures be grounded in a strong understanding of their current legal geographies. This article contributes a critical perspective to that project, as well as offering insights into the contemporary nature of “territory” itself.

Keywords:

• Antarctica
• Outer Space
• territory
• legal geography

Notes

¹ Shaw, “Territory in International Law.”

² Husby, “Sovereignty and Property Rights.”

³ Lewis, “Iceberg Harvesting.”

⁴ Herber, “Bioprospecting in Antarctica.”

⁵ Lisa Parks and James Schwoch, “Introduction.”

⁶ Beery, “State, Capital, and Spaceships.”

⁷ LeFebvre, The Production of Space.

⁸ Agnew, “The Territorial Trap.”

⁹ Elden, “Missing the Point,” 10.

¹⁰ Elden, “Land, Terrain, Territory,” 812.

¹¹ Steinberg, “Lines of Division,” 367.

¹² Blomley, Law, Space and the Geographies of Power, 28.

¹³ Res refers to a thing; terra refers to land specifically. Because much of Outer Space is not land, I will use res when discussing Outer Space, and terra when discussing Antarctica.

¹⁴ Rose, “Romans, Roads,” 92.

¹⁵ For discussion of English translation see Thomas, The Institutes of Justinian.

¹⁶ “mankind”: sic.

¹⁷ Wheeler, Terra Incognita, 22.

¹⁸ Mawson, The Home of the Blizzard, 9.

¹⁹ Pyne, The Ice, 336.

²⁰ Pyne, The Ice.

²¹ Joyner, Antarctica and the Law of the Sea.

²² Steinberg, “Lines of Division.”

²³ James Agnew and Stuart Corbridge, Mastering Space.

²⁴ Shaw, Title to Territory, 79.

²⁵ Sharma, Territorial Acquisition.

²⁶ See Klaus Dodds and Christy Collis, “Assault on the Unknown.”

²⁷ Klaus Dodds and Christy Collis, “Assault on the Unknown,” 559.

²⁸ Gould, The Polar Regions.

²⁹ Chaturvedi, The Polar Regions.

³⁰ Chaturvedi, The Polar Regions, 107.

³¹ Chaturvedi, The Polar Regions, 110.

³² Joyner, Antarctica and the Law of the Sea, 20.

³³ Australia, Argentina, Belgium, Chile, France, Japan, New Zealand, Norway, South Africa, the Soviet Union, the United Kingdom, and the USA.

³⁴ United Nations Office for Outer Space Affairs, Treaty on Principles.

³⁵ Joyner, Antarctica and the Law of the Sea, 41.

³⁶ Herber, “The Common Heritage Principle,” 15.

³⁷ Dodds, “Flag Planting,” 69.

³⁸ Serdy, “Towards a Certainty of Seabed Jurisdiction,” 206.

³⁹ Dodds, “Militant Geography.”

⁴⁰ Dodds, “Militant Geography,” 232.

⁴¹ Elden, “Land, Terrain, Territory,” 810.

⁴² In Elden, “Secure the Volume.”

⁴³ Schick, “Space Law,” 681.

⁴⁴ In Latchford, “The Bearing of International Air Navigation Conventions,” 403.

⁴⁵ Cheng, “Studies in International Space Law, 71–75.

⁴⁶ Kelso, “Basics of the Geostationary Orbit,” 76.

⁴⁷ Dempster, “Australia’s Back.”

⁴⁸ UN Office for Outer Space Affairs, “Online Index.”

⁴⁹ Jakhu, “Legal Issues,” 182.

⁵⁰ Soroos, “The Commons in the Sky,” 666.

⁵¹ Lisa Parks and James Schwoch, “Introduction,” 3.

⁵² Paliouras, “The Non-Appropriation Principle,” 49.

⁵³ Jasentuliyana, International Space Law, 152.

⁵⁴ Weissner, “The Public Order,” 237.

⁵⁵ Waite and Rowan, “International Communications Law.”

⁵⁶ Cahill, “Give Me My Space,” 233.

⁵⁷ Thompson, “Space for Rent,” 295.

⁵⁸ Ezor, “Costs Overhead”.

⁵⁹ Steinberg, “Lines of Division,” 254.

⁶⁰ In Fox, “Space: The Race for Mineral Rights,” 168.

⁶¹ In Fox, “Space: The Race for Mineral Rights,” 175.

⁶² Fox, “Space: The Race for Mineral Rights,” 175.

⁶³ Schrijver, “Managing the Global Commons.”

⁶⁴ Elden, “Land, Terrain, Territory,” 812.

⁶⁵ see for example Jackson in Steinberg, “Navigating to Multiple Horizons.”

⁶⁶ Reid-Henry, “The Territorial Trap,” 755.

⁶⁷ Agnew, “Still Trapped in Territory,” 753.