New space property age: at the crossroads of space commons, commodities and competition
| DOI | https://doi.org/10.1108/JPPEL-02-2021-0007 |
| Published date | 25 June 2021 |
| Date | 25 June 2021 |
| Pages | 88-106 |
| Subject Matter | Property management & built environment,Building & construction,Building & construction law,Real estate & property,Property law |
| Author | Maria Lucas Rhimbassen,Lucien Rapp |
New space property age: at the
crossroads of space commons,
commodities and competition
Maria Lucas Rhimbassen and Lucien Rapp
Doctoral School of Law and Political Science, Chaire SIRIUS,
University of Toulouse, Toulouse, France
Abstract
Purpose –In the absence of a clear property rights regime in outer space, commodification might bypass
several legal considerations and instill a regime through customary practice, which could collide with
internationalspace law ethics, and thus, erode the corpus juris spatialis. The purposeof this paper is to find a
way to preventsuch an erosion.
Design/methodology/approach –Through an interdisciplinary review of the literature pertaining to
space law, space property rights,economic goods, resources and commodities, this paper explores potential
solutions to prevent further fragmentation of the corpus juris spatialis when confronted with the elusive
transnationallex mercatoria dynamics and potential commodificationof the space ecosystem.
Findings –This paper explores solutions to prevent this outcome through decentralized frameworks
ranging from polycentric governanceto a new “space antitrust”regime. Polycentric governance could prove
very useful to addressthe plurality of space property rights and their complexity while space antitrustwould
not be precluded to intervene in a commoditized space market. Commodities benefited in the past from a
certain antitrust immunity, however, due to globalization, technological development and deregulation,
commoditieshave become more competitive, and therefore, the immunityis being gradually overturned.
Originality/value –This paper explores the benefits of unlocking antitrust potential forces into
channeling,hand in hand with polycentricity, the development of the space ecosystem in lightof international
space law ethics. “Space antitrust”couldbecome a discipline per se and better resonate with non-traditional
stakeholders in the space sectorin a context of commercialization and commodification of resources.Today,
benefit-sharing causes debate among spacefaring nations in terms of property rights. However, it could be
enforcedthrough competition law dynamics.
Keywords Commons, Commodities, Property rights, Polycentric governance, Space antitrust,
Ethics, Antitrust
Paper type Conceptual paper
1. Introduction
In light of the accelerated privatization and commercialization of the space sector, such as
borne out by the most recent developments within the New Space industry, space law, too,
has been required to contend with shifting market dynamics, triggered by the
commodification of space resources, which has continued to fuel theongoing debate among
The corresponding author would like to thank former colleague Lucas Mallowan from the Chaire
SIRIUS for his valuable editing input.
Funding. This research did not receive any specific grant from funding agencies in the public,
commercial or not-for-profit sectors.
Declaration of competing interest. The author declares that she has no known competing financial
interests or personal relationships that could have appeared to influence the work reported in this
article.
JPPEL
13,2
88
Received15 February 2021
Revised12 April 2021
Accepted23 April 2021
Journalof Property, Planning and
EnvironmentalLaw
Vol.13 No. 2, 2021
pp. 88-106
© Emerald Publishing Limited
2514-9407
DOI 10.1108/JPPEL-02-2021-0007
The current issue and full text archive of this journal is available on Emerald Insight at:
https://www.emerald.com/insight/2514-9407.htm
legal scholars around which interpretations to adhere to when tackling the issue of
ambiguity within the corpus jurisspatialis. As old (and sometimes new) arguments, bothpro
and contra a strict interpretation of the principle of non-appropriation, as enshrined within
Article II of the outer spacetreaty (OST) of 1967 [1], continue to be brought to the fore, a new
debate has been gaining in critical mass and momentum in both academic and private
industry fora –a debate impelled by a series of nascent initiatives sharing the scope of
establishing a spacefinance regime in outer space. The proponents of theseinitiatives aim to
bring about the commodification of space resources and the establishment of a space
commodities exchange. While being more or less isolated, such endeavors are already
underway in the private sector; yet, international space law is currently unequipped to deal
with commodification requirements unless it comes to terms with the lingering confusion
around space propertyrights within a “commons”regime. This paper raises and synthesizes
these questions (commons, property rights, resources, commodities, etc.) and applies
polycentric governance principles to an increasingly fragmented but expanding space
ecosystem, while exploring space antitrust as a solution to maintaining growing synergies
and interdependencies within the future space economy, in keeping the higher ethical
principles at the core of the corpus juris spatialis.
2. Context
The thriving space economy is fast outpacing the increasingly fragmented corpus juris
spatialis, which results in the further expansion of the existinglegal void and the gap with
customary practice. The lex mercatoria emboldens private entities into their own law-
making endeavors, notwithstanding the existing lex lata and opinio juris (e.g. self-
determination principles [2], etc.). Entrepreneurial and corporate ambitions are dictating
most future trends in terms of space-based services and market shares. Future monopolies
might bar new entrants by limiting access to resources or services through discriminatory
or anti-competitive practices.Therefore, there is a need to regulate accordingly to ensure the
legal, ethical and sustainable development of the outer space economy and benefit sharing
principles that are enacted within the OST. In this context, it is our hypothesis that
polycentric space antitrust mechanisms and effective governance strategies might offer a
pragmatic solution to address self-determination issues before they become a fait accompli:
namely, the fragmentation of space law owing to the ever expanding number of
stakeholders involved, both public and private [3] and, more pressingly, the future
commoditizationof the space market.
3. Problem
At present, the lex mercatoria –whose transnational nature can at best be described as
elusive –is raising significant challenges to international space law and to existing ethical
frameworks; the latter of which has to bear the brunt of regulating commercial interests in
space through Art. VI of the OST [4], which remits to (and thus, defers to) national
legislation. The foreseeable outcome of these yet small-scale –and to a degree stealthy –
through cascading onslaughts against established law, is that the commoditization of the
space market will collide openly with the “commons”regime of outer space activities. It is
worth asking: what does the concept of “commons”exactly entail in the context of space?
Common goods in economic terms differ from the res communis property rights in law
(Tepper, 2019). Up to the presentpoint, there seems to be a general unanimity on what space
objects, space resourcesand celestial bodies are, as well as there being a concomitant lack of
consensus on property rights pertaining to either category, which is problematic from the
standpoint of would-be regulators. In the long run, failure to address this widening legal
New space
property age
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