Posted
February 16, 2007

Wrapping Our Legal Minds Around the Global Commons: Res Nullius, Res Communis, and Res Divini Juris

Lessons from outer space in protecting our treasures here on earth.

It was good to be reminded of the dangers of decommissioned satellites and garbage dumping in outer space (Jonathan Rowe’s blog and NYT 2/6/07). How many of us remember in 1978 when Cosmos 954, the nuclear-powered Soviet spy satellite, accidentally reentered the earth’s atmosphere and, after casting shadows around an anxious globe, eventually crashed in Canada spewing radioactive debris across parts of the Northwest Territory? The Soviet Union paid the Canadian government three million dollars to help clean up after the event. That’s three million more than it paid any of the nations across Asia, Europe and North America hit by Chernobyl’s toxic cloud in 1986.

How is that we have a legal mechanism for governments to take financial responsibility for transboundary radiological pollution coming from space but not from land? What it is about space law that makes it a better protector in this regard than current international environmental law?

The answer lies in how we have written the global commons of outer space into international law. Special legal status obtains in space law, but how and why is this so? Considering anew how we came to view outer space as a global commons may be a good way to think about how we create legal institutions to protect transboundary spaces like the internet or underground water as commons.

Laws covering transboundary environmental disasters on land and in outer space are different. The 1967 Outer Space Treaty, for example, holds states responsible for the actions of non-governmental organizations within its control or jurisdiction. The 1972 Liability Convention and subsequent space law provide that states pay victim states compensation for damages caused by any nuclear powered satellite (private or public) emanating from their territories.

Such reinforced responsibility is a novel feature of space law. Neither customary international law nor existing treaty law provide the same joint liability principle for land-based nuclear accidents that release toxins. In present international ground law, operators alone are liable. Even on the high seas, operators of nuclear powered vessels are themselves liable and not states. It appears that lawmakers understood that governments would more carefully regulate activities in outer space if the law held them accountable.

But there is another reason why space lawyers viewed their legislative task differently with regard to outer space. From the very outset, jurists were more or less forced to build liability for transboundary pollution into space law because of the transboundary nature of the space their law was framing. Unlike land, outer space moves. And it moves in relation to a rotating earth. Space law deals with the responsibility of those who use this nonterritorial, fluid-like form of global space. To understand just how difficult it was for jurists to wrap their legal minds around this new kind of space, it is interesting to look at the papers presented at the first colloquium on the law of outer space.

Shortly after the Soviet Union launched Sputnik in October 1957, the first colloquium on the law of outer space took place in the Hague. International jurists debated the jurisdictional character of the space which had just been technologically opened up to them. How should this space be referred to in international law? Should outer space be considered res nullius, space belonging to no one with governments assuring nonexclusive, open access to it as to the high seas; or should it be res communis, space belonging to everyone, commons with government regulations assuring just distribution or allocation of its resources; or was outer space of such a completely different nature that it demanded entirely new rules?

Reading the proceedings of the first two colloquia (1958-1960) it is clear that jurists are not only debating how outer space is to be governed. They are also trying to figure out how outer space is to be imagined. After all, outer space is a relatively unknown quantity. Its seemingly limitless extension and movement taxes the legal imagination. Stephen Gorove, an international lawyer at the first space law colloquium, offered the following history of the problem of codifying nonterrestial space:

bq: Roman law distinguishes the air [aer] that we breathe from the air space (coelum) superadjacent to the land. The air, just as the ocean and the flowing water of a natural stream, was considered res communis and was not susceptible of private dominion. On the other hand, Roman law protected public and private rights in regard to space above the land whenever and as to such height as was deemed necessary for the occupation and use of such space. The frequently asserted Latin adage “Cujus est solum, ejus est wsque ad coelum” [he who owns the land, owns it to the skies] has not been found to occur in this form in the Roman texts but has been traced back more directly to a gloss from which the common law seems to have borrowed it, as evidence by Coke’s and Blackstones’ language… . In its strictly literal meaning, however, the maxim has been repudiated under the growing impact of aerial navigation and advances in communications, and the Supreme Court in the United States v. Cosby case even went so far as to assert that the doctrine of extending common law ownership of the land to the “periphery of the universe” had “no place in the modern world.”

At the beginning of the modern space age, legal scholars could argue that the idea of upwardly extending sovereignty came not from Roman but from English common law. Applied to outer space it was a meaningless abstraction.

Using Roman law to make the space law point that coelum, the skies, are a different kind of space requiring a different property status is interesting. However, it leaves out a very important category of Roman property law that may be even more pertinent to the problem of creating laws to govern human relations in outer space (as well as our relations to deep underground space including aquifers and minerals). Early space lawyers failed to mention this Roman legal category: res divini juris – things or spaces belonging to the gods.

Here, in fact, is how the full system of Roman property law goes:

  • res communis (light and air)
  • res publicae (government-run navigable rivers, highways, territorial seas)
  • res nullius (objects/spaces with no property rights attached either because they are abandoned, like stray cats, or because they are not yet acquired, like whales)
  • res privatae (any res nullius object that is taken into possession by one or more individuals or corporations)
  • res divini juris – things or spaces belonging to the gods

    As you saw above, at the beginning of the modern space age, categories of Roman law were still important frameworks for thinking about how to write new laws for new kinds of res, new kinds of space and things. These categories are still important legal structures influencing how we write law for the virtual space of the internet and for the living things represented by genetic code. In fact, the examples I’ve added in parentheses above are what you would find in modern textbooks of international law. (Since such textbooks do not mention the category of sacred things, there are of course no modern examples to report.)

    In short, these legal categories are important tools to think with, especially when we are thinking about things and spaces that many would argue need to be protected as commons.

    What difference does it make that we have dropped the category of things or spaces belonging to the gods from our modern (Western) property system? Into which categories did sacred things go once modern law omitted their traditional domain?

    I would argue that this category of sacred things shows up in strange ways in our modern, secular legal system, especially when it comes to things and spaces related to the commons. It shows up in the special liability laws covering things moving through the global commons of outer space where governments are made more responsible than usual. It showed up in 1958 in the limits our international lawmakers encountered when they sought to wrap their rational minds around a kind of space they did not fully understand. As one participant at the conference, M.Seara-Vazquez, put it:

    bq. pace is not a thing [res]. Therefore it cannot be the object of a law. We may quite certainly say that the space cannot be attached to any category of things known. It pertains to another new category. Those who qualify the space as a res nullius, and those who qualify it as a res communis, and even those who call it a res communis omnium render an arbitrary qualification because they proceed from the principle that space is a res and then attempt to qualify this “res” according to the effects due to this qualification itself. They did not ask themselves whether this space is a res.

    As Mr. Seara-Vazquez continued to grope for a way to talk about the strange task he and his fellow lawmakers were called upon to complete at the dawn of the space age, you can see how limiting his legal framework is. So limiting that he ends up by stating the utter insignificance of the humanist project in the face of universally common space:

    bq. At the beginning of this error, there is perhaps an ego-centric (or rather terra-centric) conception which makes our planet the center of the universe. The earth however, should be considered from a more objective point of view, i.e. that the earth is not the center of the universe but an insignificant part of it.

    Space law required us to wrap our legal minds around a new kind of space. If we are to make just laws for the commons, we need both old and new legal categories to describe and appreciate common things and spaces. We need appropriate categories that allow us to make new (and old) connections between things and spaces. For this task we need our full historical and inventive imagination working on the problem.

    In future blogs I will return to the law of the global commons in outer space, the high seas and other domains, sketching out broader connections to the history of colonization and the tasks of decolonization.