An Introduction to Space Antitrust
Contributor: Maria RhimbassenThe purpose of this paper is to demonstrate the hidden power of antitrust into shaping a sustainable space ecosystem in the future and to ensure that space commerce, and hence the emerging “lex mercatoria spatialis” adheres to the higher principles of international space law.
Introduction
International space law, or what the community of space jurists calls the corpus juris spatialis, consists of international binding rules which apply to governmental entities. The main body of international space law is the Outer Space Treaty (OST) of 1967 (1), which is a treaty of principles, such as, inter alia, benefit sharing, free exploration, equal access, due regard, non-harmful interference, and cooperation. Since its creation, the OST has achieved global consensus and ensured the peaceful use of outer space. However, circumstances are changing as the space sector grows commercially and the role of non-governmental entities becomes more prominent (2). In fact, article VI of the OST -- which provides that States must supervise the activities of non-governmental actors from their respective jurisdiction and that therefore the OST indirectly applies to these private entities through national space legislation -- seems not to suffice anymore (3). Indeed, it leads to fragmentation and issues such as “forum shopping” (4) whereby non-governmental actors seek to incorporate their entities within more permissive jurisdictions, enhancing thus the divisiveness of international legal standards and norms (5). Furthermore, this accelerated privatization dynamic is not only caused by a race towards the acquisition of space resources, but on a new interpretation of article VI of the OST which emerges as an adaptive mechanism, opening opportunities for further regulation on commercial space when needed, through national law (6).
Commercial Space Law Context
Given the context supra, the observed trend is that a growing number of divergent national laws are fragmenting the main international body of space law to protect domestic geopolitical and commercial interests (7). The legal void contained within international space law gave enough room to States to further regulate the commercial activities of their nationals according to their interests, under the condition that these national legislations comply with the applicable law and the rules of interpretation of international treaties (8). However, it is debated today whether certain legislations are departing from these requirements and, interestingly, there seems to be no right or wrong answer as we simply tread into unknown legal territory (9). To illustrate this point, the example of the non-appropriation principle, enshrined within article II of the OST, can be used (10). Conventionally, it is considered that no State can claim sovereignty over celestial bodies or their resources. However, nothing is mentioned as to the commercial appropriation of such resources and some States, such as the United States, Luxembourg, the United Arab Emirates (11) chose to grant rights to space resources to their nationals while there is no consensus at the international level on this issue (12). One of the main obstacles to a consensus is that, besides the non-appropriation principle, there is no other space property rights regime in place, nor are there any definitions related to property law which would be useful in that sense. For instance, there is no definition of a “celestial body”, of “movable” or “immovable” goods in space, nor is there any universally adopted legal definition of a “space object” or “space resources” (13). Most interestingly, as the legal debate continues on the legal void at the international level, and while “fragmented” national law creates a heterogenous puzzle of legal loopholes (e.g., assignment, attribution or jurisdiction matters, etc.), the private sector moves fast enough to seize the opportunity to create “customary” practice and make its own rules (14). This phenomenon can be described as the rise of the “lex mercatoria spatialis” (15) (or commercial space law), which, contrary to the corpus juris spatialis, evolves rather quickly in a “stealthy” fashion and is more elusive given that commercial law is not international, but transnational (16). Transnational law is more flexible and multifaceted, it is therefore harder to grasp. For example, with regards to property rights, what makes its international harmonization inherently trickier is that property law is linked to a national jurisdiction. However, as soon as some property rights are transformed into financial assets, they escape a given jurisdiction and fall under transnational law (17). For this reason, this note addresses property rights in further sections, more precisely through the prism of space resources, finance, and intellectual property rights, while ensuring that, for the benefit of a sustainable space ecosystem, monopolies will be limited to the greatest extent possible. In particular, anti-monopoly law is studied at two levels: the what and the how. The what consists in the value proposition of ethical space commerce, compliant with fair competition principles, and the how consists in the means to ensure that those means do not monopolize the final frontier.
Problem
This changing context raises the question of whether public international space law is well equipped to face the rampant transnational lex mercatoria spatialis dynamic, or whether new cross-national actors are playing an increasing role in private international law, and in the privatization of law itself, with regards to the development of the future space ecosystem. This begs the question as to the means of ensuring the (perennial) protection of the higher principles and ethics of international space law despite the sector’s privatization.
Potential Solutions
There are multiple potential legal solutions at the international level, such as amending the OST. However, interestingly, the private sector is not that keen on changing the OST (18). Moreover, reaching global consensus has proved increasingly more challenging (19) given the growing number of space faring nations or nations with space capabilities (20), non-traditional space actors (21), the democratization of the space sector (22), and the fragmentation of space law (23). Therefore, for efficient and pragmatic reasons, a solution at the global governance level, such as the United Nations (24), is not necessarily ideal for the near future (25), nor for the commercial sector which prefers to “pick and choose” among the most advantageous jurisdictions following their interests, to the detriment of globalized legal stability (26). Moreover, it is asserted that new elements of the body of law are created behind closed doors, privately, by lawyers and arbitrators, and not publicly, by judges (27). Notably, since the private sector appears lately to be one step ahead of regulators in the emerging space commerce (28), it would make sense to look at adopting strategies that resonate with the commercial sector to anticipate the next moves while not just regulating for the sake of it (29). Instead, to secure the perennialism of the higher principles of space law, it would be beneficial to create legal (either hard or soft law) “beacons” as catalysts for future ethical compliance, in terms of requirements, incentives and sanctions, and thus help channel the market forces into a sustainable direction in the interest of intergenerational benefit sharing (30). Legal design (31), as elaborated in the discussion section, infra, comes in as a useful tool to mind map a constellation of legal loopholes and contention points to be “transformed” and “activated” into such ethical compliance beacons (32) by co-design at a later stage. Such a visual tool can indeed contribute to determining better strategies and roadmaps down the road.
Analysis of the What: Antitrust and the OST Principles
One such strategy could stem from the realm of national law, even though it can trigger international implications and consequences. In this case, it is not about national space legislation, but about competition law, or what is also called antitrust. The only reason why antitrust is considered at his stage, is that antitrust stems from the national level and that there is no such thing, to this day, as a harmonized international antitrust regime per se besides a fragile international governance consisting of non-binding guidelines (33) and failed dialogue at the level of the World Trade Organization (WTO) (34). Antitrust is indeed very much politicized (35) and arbitrary, judged on a case-by-case basis, and at the service of “national champions” (36). However, despite these hurdles, several arguments can be made in favor of antitrust mechanisms applied to the commercial space sector for the benefit of protecting the aforementioned principles to prevent a zero-sum dynamic (37).
Benefit Sharing
Firstly, fair competition entails preventing further consolidation of a market and breaking up monopolies which absorb most benefits in one place (38). In the space sector, the 1966 Declaration on Space Benefits (39) and the OST emphasize the need for space activities to be “carried out for the benefit” of humankind. Indeed, article I of the OST, provides that:
“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 (...)” (emphasis added)
However, it is not clear how space activities are exactly to be carried out for the benefit of all. The notion of “sharing” benefits derived from space activities appears in the Moon Agreement of 1979 but the agreement itself has not succeeded in being adopted by a significant number of nations and its fate remains uncertain (40). However, the notion of benefit “sharing” has resurfaced through international working groups such as the Hague International Space Resources Governance Working Group (HIRSGWG) and debated by scholars at Outer Space Institute (OSI) in terms of what benefit sharing should entail (41). What is clear, though, is that more work must be done to determine what the notion of benefits entails, and an antitrust perspective might be helpful in terms of promoting fair competition while restricting unchecked consolidation. More work must also determine whether equality or equity (or both, and if so, to what extent) should prevail.
Equality and Free Access
Secondly, it could be argued that the principle of “equality” and “free access” as enshrined within article I of the OST would seem to preclude monopolies insofar as equal access to celestial bodies must be maintained while, in theory, monopolization would potentially bar such equal access:
(...) 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 (...) (42). (emphasis added)
The main concern raised by the above-cited paragraph is to determine to what extent the article I applies to space resources on the celestial bodies in question. Since celestial bodies are not defined, as previously stated, and since there is no mention of space “resources” within the OST, national law or doctrine can be used to answer the question. The only national legislations mentioning space resources are the ones in favor of the commercialization, as listed supra (43). Secondary sources, or doctrine, reflect divergent views expressed by scholars at the international level (44). This situation illustrates how national law is filling the legal void previously referred to. Nevertheless, which void does it precisely try to fill? The term “appropriation” appears in article II of the OST, alongside with the term “celestial body” which, in article I appears next to “free access”, “equality” and “benefit”. By association, it can be inferred that the States in favor of space commerce do not object to the idea of the extension of these principles to space resources. In this case, as space resources regulation seems to emanate from the national level, national antitrust measures constitute, (at the first stage) an adequate legal response, in parallel, to contain and monitor the risk of monopolization or other anti-competitive behavior in space (an international level field). Such measures could indeed be included within current and future national space legislation and enforce fair competition based on the OST principles. This could in turn generate enough momentum and critical mass to trigger an international framework and intensify harmonization efforts (at the second stage), especially with regards to the commercialization of the space sector.
Cooperation and Due Regard
Thirdly, article IX of the OST provides that principles such as “cooperation” and “due regard” must be complied with:
In the exploration and use of outer space, including the Moon and other celestial bodies, States Parties to the Treaty shall be guided by the principle of cooperation and mutual assistance and shall conduct all their activities in outer space, including the Moon and other celestial bodies, with due regard to the corresponding interests of all other States Parties to the Treaty (45) (emphasis added)
These obligations, under international law, bind States directly and non-governmental entities, indirectly, because of article VI which extends the State’s responsibility to the activities of their respective nationals. However, as “due regard” may be interpreted as mandatory because of the wording “shall conduct” which precedes it, the same rationale might not necessarily cover cooperation because the wording “shall be guided” might rather lead towards the realm of guidelines. Monopolization tends to preclude cooperation, but it is harder to draw the line between what might consist of cooperation (46) vs collusion (47). “Cooperation” in this case represents an interesting “beacon” because if not carefully delimited, it might lead to a legal void and be used to justify some form of collusion in the future. Therefore, this is a useful example to bring forth ethics and values in the light of the OST principles towards “guiding” interpretation of “cooperation” in compliance with fair competition requirements. Mandatory “due regard” is a key argument backing fair competition due to its definition: “to give a fair consideration to and give sufficient attention to all of the facts” (48). In article IX, “due regard” extends to the interests of “all” other States Parties to the OST, which means that all these interests should be taken into “fair consideration” before conducting activities in outer space. It is difficult to imagine how a monopolistic environment, or any other anti-competitive behavior would come to terms with this norm.
Non-Harmful Interference and Equitable Access/Distribution
Fourthly, international space law, thanks to article IX of the OST and international telecommunications law, owing to the International Telecommunications Union (ITU), both share an important principle which is non-interference that is a major pillar of space activities. On the one hand, article XI continues as follows:
(...) If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space, including the Moon and other celestial bodies, would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, including the Moon and other celestial bodies, it shall undertake appropriate international consultations before proceeding with any such activity or experiment. A State Party to the Treaty which has reason to believe that an activity or experiment planned by another State Party in outer space, including the Moon and other celestial bodies, would cause potentially harmful interference with activities in the peaceful exploration and use of outer space, including the Moon and other celestial bodies, may request consultation concerning the activity or experiment. (emphasis added)
When applied to the fair competition lens, this implies that prior to commercial activities which might result in limiting other nations or nationals’ activities, to the point of potentially “interfering” with their current or prospective activities, States shall conduct consultations or basically notify one another. The enforcement of these consultations remains however uncertain. Nevertheless, the legal obligation remains, and represents, at least in theory, an opportunity for antitrust to set forth recommendations and precedents.
On the other hand, the ITU’s Constitution forbids “harmful interference” in its article 45 (49), but in this case, it defines “harmful interference” in more technical terms, confined to telecommunications:
“Interference which endangers the functioning of a radionavigation service or of other safety services or seriously degrades, obstructs or repeatedly interrupts a radiocommunication service operating in accordance with the Radio Regulations” (50).
However, it is inferred that non-harmful interference is relevant to fair competition, with regards to radio spectrum frequencies management and orbital slot allocation, due to the frequent reference to “equitable geographical distribution”, “equitable use” (article 12), and “equitable access” (article 44) which states the following:
“In using frequency bands for radio services, Member States shall bear in mind that radio frequencies and any associated orbits, including the geostationary-satellite orbit, are limited natural resources and that they must be used rationally, efficiently and economically, in conformity with the provisions of the Radio Regulations, so that countries or groups of countries may have equitable access to those orbits and frequencies, taking into account the special needs of the developing countries and the geographical situation of particular countries”. (emphasis added)
Equitable access to limited natural resources has also been interpreted by legal scholars as amounting to a fair competition principle (51) and this would add to the argument against potential monopolization of space resources. Furthermore, despite the increasing privatization of the telecommunications sector (52), there remains the obligation to ensure that “fair competition” is adhered to, as in the case of Intelsat (53).
Still, what is to be considered as more problematic is the national interpretation of the principle of non-harmful interference in the sense that it is not clear to what extent national legislation is ready to apply “reciprocity” as implied within article IX of the OST whereby States shall not “interfere” with each other’s activities, and if there is a risk of harmful interference, they must enter into consultation. For instance, one such national law is the US Space Act of 2015 (54) which, in section 402 relative to space resources utilization, provides that the President is directed by the bill to:
(...) promote the right of U.S. citizens to engage in commercial exploration for and commercial recovery of space resources free from harmful interference, in accordance with such obligations and subject to authorization and continuing supervision by the federal government. (emphasis added)
The only instance where “reciprocity” is mentioned within the OST is in article XII whereby installations and equipment are to be open to other States on a basis of reciprocity, due notice, and no interference with the facilities’ operations. It might then be inferred that non-interference is of a reciprocal nature and that this interpretation would take precedence over the US Space Act of 2015 which must comply with international applicable law (55). Otherwise, if the US Space Act of 2015 does not recognize the reciprocal nature of non-interference access to and/or recovery of space resources, it would advocate for an extremely competitive environment which would result in challenging the higher principles which the OST fundamentally relies on. This legal contention points to another example for space antitrust “beacons”, channeling prospective space commerce through reciprocal dynamics and non-interfering forces. In this case, what might clarify the perspective of the US is the wording found in bilateral agreements such as the 2020 Artemis Accords (56). Indeed, section 11 on “Deconfliction of Space Activities” (57) elaborates on “due regard” and “non-harmful interference” under the form of “safety zones” (58), while committing to the OST (59). Section 11.3 of the Accords further reiterate the bilateral agreement’s commitment to article IX of the OST and its implied reciprocity:
Consistent with Article IX of the Outer Space Treaty, a Signatory authorizing an activity under these Accords commits to respect the principle of due regard. A Signatory to these Accords with reason to believe that it may suffer, or has suffered, harmful interference, may request consultations with a Signatory or any other Party to the Outer Space Treaty authorizing the activity (60). (emphasis added)
Furthermore, the implied reciprocity is emphasized in section 4:
The Signatories commit to seek to refrain from any intentional actions that may create harmful interference with each other’s use of outer space in their activities under these Accords.
In short, it can be posited that reciprocal non-harmful interference (or no interference), as referenced supra, complies with fair competition principles in that it might be interpreted as a barrier to monopolization attempts with regards to, inter alia, space resources. This leads the analysis to contemplate antitrust as a potentially satisfactory solution to reach regulatory targets into a growingly transnationalist arena surrounding commercial imperatives. A “space antitrust” framework would require a mandate to make sure that these commercial imperatives thrive for the benefit of the higher principles within space law, which distinguish outer space from most other domains.
Anti-monopoly Law
Antitrust, as a field of law per se, differs across national jurisdictions. On the one hand, in Europe, it merged into a transnational “continental” framework following the Treaty on the Functioning of the European Union (TFEU) (61). Success, however, remains limited due to divergent national interpretations and interests, and due to some of the articles’ wording perceived as controversial (62). European competition law considers anti-competitive behavior through abuse of dominance, collusion, concerted practice and cartelization and focuses on the consumer’s welfare while seeking to protect competition per se as opposed to protecting competitors. Competition law at the European level starts with article 101(1) of the TFEU which prohibits:
"All agreements between undertakings, decisions by associations of undertakings and concerted practices which may affect trade between member states and which have as their object or effect the prevention, restriction or distortion of competition within the common market." (63) (emphasis added)
On the other hand, on the other side of the Atlantic, in the US, the Sherman Antitrust Act of 1890 (64), the Clayton Act of 1914 (65) and the Federal Trade Commission (FTC), also created in 1914, mostly oppose artificial monopolies (66), anti-competitive or deceptive behavior under the condition that there is an anti-competitive action leading to such an outcome. For instance, section 1 of the Sherman Antitrust Act provides that any contract or conspiracy to restrict trade is illegal. Furthermore, on monopolization, section 2 provides that:
Every person who shall monopolize, or attempt to monopolize, or combine or conspire with any other person or persons, to monopolize any part of the trade or commerce among the several States, or with foreign nations, shall be deemed guilty of a felony (...) (67) (emphasis added)
This explains why certain scholars (68) refer to US antitrust as, among others, “anti-monopoly” law. At the very beginning, it was used to break monopolizing trusts, in a serial fashion, but in time, it lost its momentum. According to Posner (69), monopolies can be either natural (which the Sherman Act refers to as “innocent monopolies”, to be allowed as legal” or artificial (illegal). Natural monopolies enable, in theory, massive economies of scale and are therefore permitted. Artificial monopolies, on the contrary, are detrimental to the economy as they seek to distort and restrict trade, and they are to be therefore prohibited. Such was the argument of SpaceX in its antitrust battle vs United States Alliance (ULA) when it stated that ULA did not in fact enable such economies of scale and that SpaceX could provide launching services at a cheaper price. Nonetheless, in reality, it is hard to draw the line since antitrust authorities pretend to favor consumer welfare (low prices), but it is hard to distinguish whether low prices are indeed aimed at the final consumer or, in fact, to disqualify competitors thanks to predatory pricing.
Space Antitrust
The extrapolation of anti-monopoly law to outer space (e.g., on orbit, on celestial bodies, etc.), raises the question as to which jurisdiction applies. In theory, the launching State’s jurisdiction extends to the launched space object, in perpetuity, such as in the case of the International Space Station’s modules. However, in many cases, there can be confusion in determining the “launching State”, which is defined at article I of the Liability Convention of 1972 (70), especially when several States are involved in the launching, as opposed to the “State of Registry”, according to article VIII of the OST and the Registration Convention of 1976. Sometimes, the two notions collide head-on (71). The situation gains in further legal complexity in connection with on-orbit transfer of ownership vs title. It is not clear whether ownership can be fully transferred in orbit, as opposed to title, which does not. This may prove over-complicated indeed. Therefore, it would be next to impossible to assign or attribute antitrust to a specific jurisdiction in space and that explains the need for a harmonized outer space regime in terms of antitrust, even more when the principles addressed supra stem from international public law. Otherwise, different antitrust regimes would then apply to different sites of activity by different actors, which could end up in aberrant scenarios.
It would be more convenient to establish a predictable and harmonious legal certainty, appropriate for each resource system or specific application in outer space and to consider antitrust as a creative tool, not an end in itself. The rationale is to rely on competition law to ensure market sustainability, while reducing the risk of fierce and unfair competition. For instance, in the case of scarce resources (e.g., polar ice water on the Moon), essential services (e.g., oxygen supply on a station, etc.), there is a need for measures against reckless monopolization based on a “first come, first served” logic. As mentioned supra, due regard and non-harmful interference may be used in that sense, but implementation remains to be established. Should that be brought to public international bodies, in the form of binding measures or non-binding guidelines? Should recommendations be made at the national level (e.g., model law clauses (72) to be inserted as amendments to national space legislation? Without harmonization efforts at that level, there is a risk of increasing forum shopping whereby a private actor seeks to register its activities in jurisdictions with less stringent legislation and dubious enforcement resources. This trend starts in the space sector and this is alarming since space is a high risk sector and launching States’ international liability is a complex notion in terms of attribution, especially if the damage takes place in orbit which explains why some private entities either choose a complex forum architecture, mostly through contractual law (73), or try to escape any national jurisdiction altogether by launching from international waters (74), which is considered as yet another example of legal void and deserves more consideration.
The How
The previous sections addressed the “what” or more precisely, the space market through the lens of fair competition and antitrust. However, determining the “how” is more challenging. Indeed, as mentioned, sources of a space antitrust could either originate in future initiatives at the level of hard law or could be left to the realm of soft law and self-regulation. The former surpasses the latter in terms of legitimacy, but might be very time-consuming (75), if reaching consensus at all. The latter might not sit well with the space community at large, but might prove more efficient and timelier, which is needed especially when space commerce beckons.
To come to grips with the implementation conundrum, this section draws from the legal field of intellectual property, which is considered, according to the Organisation on Economic Cooperation and Development (OECD) (76), as a part of competition law because of its monopolistic potential. Intellectual property has its share of controversy in terms of knowledge enclosure and excludability of knowledge commons (77), thus arguably reducing the advancement of innovation to the status of stagnation and limiting the diversity of knowledge itself (78). Intellectual property (IP) rights, as any aspects of property law, rely on a State’s jurisdiction. However, when transformed into financial assets, these intangible assets can eventually escape that given jurisdiction (79). Furthermore, as IP increasingly interacts with antitrust (80), it is interesting to note here the junction between property rights, IP, finance, antitrust and space. Through IP, antitrust could find yet another way to escape national legislation and incentivize the growth, at the same time, of a space financial market. In this situation, the content of IP could be space resources per se, however modified somehow in order to qualify for either a patent or trade secrets and translated into financial assets. They could then benefit from innovative and decentralized archiving through technology such as blockchain -- although “consortium blockchains” (81) might raise collusion or concerted practices issues, which qualify as "unfair competition” and enter the realm of smart contracts, which are self-executory by default (82), and increase transparency, while escaping a whole lot of jurisdiction. They could even become a source of space commodities in the case of an eventual space commodities exchange (83). Such opportunity for decentralized governance can perhaps be managed at best through polycentricity, which is based on Ostrom’s matrix of goods (84) trying to solve issues around the “commons” and their respective rights (85). This might prove essential as IP carries an inherent risk of monopolization. In this scenario, entire resource systems, altered to qualify as IP, can be monopolized by a few private entities, which could end up restricting significantly the capacity and diversity of space commerce in the future. Since this kind of assets would fall under the fifth basket of commodities (86), namely financial rights, and in this case, derivatives, it would be trickier to determine the applicable law because of increasing deregulation. Furthermore, this problem is exacerbated by decentralized cyber technology such as blockchain. Hence the bigger problem of identifying the appropriate source of law to intervene in this transnational occurrence.
Having touched on the pros and cons of hard and soft law, supra, the observation which could be made in this section is that soft law, building on the trend of privatization of the law, could seize this opportunity to play an active role through different instruments such as compliance requirements, contractual clauses, or ethical principles, which often precede law chronologically (87). These private sources of law, and perhaps soon enough public sources too, stem from a potential business model involving platforms that manage decentralized blockchain systems housing the code of financial assets derived from space resources IP -- and arguably creating thus new property rights “from scratch” (88). These platforms could make sure that no set of coded resource systems take over and monopolize the market and enforce their own rules and smart contracts over others (89). Such purpose focused on fair competition could be orchestrated inside a given community of interest (90) and rely on an external entity (oracle form to be determined) for guidance with respect to perpetuating the protection of the given purpose (91). That could take the form of a trust (92) and contribute to laying the foundations for future sustainable customary practice, norms, or behavior. Such trust might indeed address antitrust on the level of the “what” (fair competition and resource systems) and the “how” (fair competition in terms of platforms, i.e., preventing monopolization of one or several blockchains through initial allocations) by enforcing principles such as open access and transparency.
Discussion
Outer space remains a heavily regulated and strongly politicized sector. However, the growing commercialization of the sector opens the gate to another form of regulation besides the sectoral one. International commercial law, hand in hand with national legislation, fills the gap left by the corpus juris spatialis, however, with opaque transnational and private legal mutations as the ones negotiated behind closed doors, in arbitration, it is difficult to fully anticipate the “soft” lex ferenda, especially when customary norms are being set in motion as of this writing. This note asserts the need to at least anticipate the evolution of competition in the space ecosystem, through the legal lens, and to act on it to ensure fair competition and mitigate the risk of monopolization for the benefit of a sustainable and diversified space economy ahead.
Borrowing from legal design, the knowledge mapping below (Figure 1) summarizes the key principles as enshrined in the corpus juris spatialis and their potentially beneficial impact as compliance catalysts for fair competition in the commercial space sector. The mind mapping also includes various strategies leading to antitrust solutions such as the thesis of IP.
Figure 1: Space commerce through the lens of antitrust as a purpose
In a nutshell, the above figure aims to illustrate the fact that competition law in the space sector is not just about busting monopolies in the launchers sector (93). It can indeed be a lot more than that, and creativity is the limit. In short, the sky is not the limit but only the beginning.
Conclusion
The purpose of this paper is to demonstrate the hidden power of antitrust into shaping a sustainable space ecosystem in the future and to ensure that space commerce, and hence the emerging “lex mercatoria spatialis” adheres to the higher principles of international space law. Despite antitrust initially stemming from national law and its challenging international (or lack of) governance and harmonized enforcement, there are many shortcuts, as elaborated throughout this paper, to apply antitrust in the space sector. One such strategy is through anticipating the future nature of the space financial market thanks to decentralized technology seeking to further escape jurisdiction requirements. This implies the need for an adaptive governance based on polycentricity and openness, for the benefit of intergenerational equity and sustainability. Pragmatic ways must indeed be found to preclude further enclosure of knowledge at the interplanetary level, which generate an adverse effect, opposite of economic and innovation growth (94). The next step is to compare governance models and select the most efficient path towards ensuring the perennial protection of space law principles such as benefit sharing, cooperation, equality, freedom of exploration, non-harmful interference, and due regard, applied through the lens of fair competition for a diversified space economy.
Acknowledgements
The author wishes to thank all the Open Lunar Foundation colleagues for their valuable feedback and input with regards to the content of this paper. Special thanks to Chelsea Robinson’s insightful comments and essential editing, Heloise Vertadier for all the thorough and challenging questioning which brought depth to this paper, and to Jessy Kate Schingler for her high level remarks and rich perspective.
References
(1) The 1967 Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, referred to as the Outer Space Treaty (OST) is available at: https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introouterspacetreaty.html.
(2) See Hobe, S., “The Impact of New Developments on International Space Law”. Retrieved from https://www.unoosa.org/pdf/pres/2010/SLW2010/02-12.pdf on March 28th, 2021. Privatisation and commercialisation of outer space.
(3) Article VI of the OST provides that:
“States Parties to the Treaty shall bear international responsibility for national activities in outer space, including the Moon and other celestial bodies, whether such activities are carried on by governmental agencies or by non-governmental entities, and for assuring that national activities are carried out in conformity with the provisions set forth in the present Treaty. The activities of non-governmental entities in outer space, including the Moon and other celestial bodies, shall require authorization and continuing supervision by the appropriate State Party to the Treaty. When activities are carried on in outer space, including the Moon and other celestial bodies, by an international organization, responsibility for compliance with this Treaty shall be borne both by the international organization and by the States Parties to the Treaty participating in such organization”.
(4) This resonates with the concept of Space 3.0 as defined by Israel in Israel, B., as quoted in Galvan, B. M., “Blockchain and Space Law 3.0: How smart contracts can help govern the moon and outer space: As nations and private firms venture farther into the galaxy, blockchain and distributed ledger technology could help enforce rules and resolve conflicts”, Forkast, October 15, 2020, retrieved from: https://forkast.news/blockchain-space-law-smart-contracts-govern-moon-outer-space/, on March 30th, 2021. Israel defines Space 3.0 as:
“Space Governance 3.0 will be inter-operator: private law regimes constructed from contracts between spacecraft operators (and spacecraft, in some cases) in which all space actors, public and private, play on a level field”. (emphasis added)
(5) Forum shopping is defined as: “Such occurs when a party attempts to have his action tried in a particular court or jurisdiction where he feels he will receive a most favourable judgment or verdict”, in Garner, B. (ed), “Black's Law Dictionary”, 7th edn., Stanford, CT, and London: West Group Publisher, (1999). Retrieved from Koch, H. “International Forum Shopping and Transnational Lawsuits”, Geneva Pap Risk Insur Issues Pract 31, 2006, at p. 293–303, available at: https://doi.org/10.1057/palgrave.gpp.2510083, on April 1st, 2021.
(6) For more on forum shopping in the space sector, see Linden, D., “The Impact of National Space Legislation on Private Undertakings: A Regulatory Competition between States?”,Working Paper No. 190 – September 2017, KU Leuven, retrieved from https://ghum.kuleuven.be/ggs/publications/working_papers/2017/190linden, on March 26th, 2021.
(7) It is argued in Pistor, K., “The Code of Capitalism: How the Law Creates Wealth and Inequality”, Princeton University Press, 2019 at p. 217 that legislation is being created when private alternatives do not suffice in the first place. It is also argued in Teachout, Z., “Break’Em Up: Recovering our Freedom from Big Ag, Big Tech, and Big Money”, All Points Books, New York, 2020, at p. 102 that private alternatives such as arbitration suppress law.
(8) For more on the fragmentation of international law, see Koskenniemi, M., “Fragmentation of International Law: Difficulties Arising from the Diversification and Expansion of International Law”, Report of the Study Group of the International Law Commission, General Assembly, United Nations, A/CN.4/L.682 13 April 2006, retrieved from https://legal.un.org/ilc/documentation/english/a_cn4_l682.pdf, on April 2nd, 2021.
(9) International rules of treaty interpretation are to be found in the 1969 Vienna Convention on the Law of Treaties (VCLT), retrieved from: https://legal.un.org/ilc/texts/instruments/english/conventions/1_1_1969.pdf, on March 26th, 2021. For more on space law interpretation issues, see Hertzfeld, H., “Current and Future Issues in International Space Law”, Space Policy Institute, George Washington University, Washington, D.C. International Law Association, New York, NY, 24 October 2008, retrieved from: https://nsuworks.nova.edu/cgi/viewcontent.cgi?article=1640&context=ilsajournal, on March 30th 2021.
(10) Article II of the OST provides that:
“Outer space, including the moon and other celestial bodies, is not subject to national appropriation by claim of sovereignty, by means of use or occupation, or by any other means”.
(11) The national legislations mentioned, respectively, are the US “Space Resource Exploration and Utilization Act of 2015”, H.R.2262 - U.S. Commercial Space Launch Competitiveness Act, 114th Congress (2015-2016), retrieved from : https://www.congress.gov/bill/114th-congress/house-bill/2262, on March 28th, 2021; the Luxembourgian: “Loi du 20 juillet 2017 sur l’exploration et l’utilisation des ressources de l’espace”, retrieved from : http://data.legilux.public.lu/file/eli-etat-leg-loi-2017-07-20-a674-jo-fr-pdf.pdf., on March 28th, 2021); and the UAE “Federal Law No. (12) of 2019 on the Regulation of the Space Sector”, Issued on 19/12/2019, Corresponding to 22 Rabi' Al-Akhar 1441H, retrieved from https://www.moj.gov.ae/assets/2020/Federal%20Law%20No%2012%20of%202019%20on%20THE%20REGULATION%20OF%20THE%20SPACE%20SECTOR.pdf.aspx, on March 30th, 2021.
(12) Jakhu, R., “Legal Issues Relating to the Global Public Interest in Outer Space, 32 J. SPACE L, 2006, at pp. 43-46 notes that during the 1976 First Committee of the UN General Assembly the representatives from both Belgium and France shared the view that the OST “prohibit[ed]…any claim of sovereignty or property rights in space” and that “growing pressure by a number of countries for increased privatization, commercialization, deregulation, and globalization, along with recent changes in the global geopolitical situation, are creating disturbing disagreements about the interpretation of the [OST], its implementation, and the direction of future legal development”. Retrieved from Wrench, J. G, “Non-Appropriation, No Problem: The Outer Space Treaty Is Ready for Asteroid Mining”, Case Western Reserve Journal of International Law, 2019, p. 445, at: https://scholarlycommons.law.case.edu/cgi/viewcontent.cgi?article=2546&context=jil, on April 2nd, 2021.
(13) The French Space Operations Act of 2008 is centered on the “space object”, however it does not define it. Space resources are defined in the US legislation “Space Resource Exploration and Utilization Act of 2015”, supra, note 11. Internationally, they are also defined within the “Building Blocks for the Development of an International Framework on Space Resource Activities'' of the Hague International Space Resources Governance Working Group (HISRGWG), available at: https://www.universiteitleiden.nl/binaries/content/assets/rechtsgeleerdheid/instituut-voor-publiekrecht/lucht--en-ruimterecht/space-resources/bb-thissrwg--cover.pdf, retrieved on March 29th, 2021. However, these building blocks are not enforceable since the HISRGWG does not produce legally binding documents, but recommendations to the United Nations Committee on Peaceful Uses of Outer Space (UNCOPUOS).
(14) Example of self-governance on Mars in Majeed, Z., “Elon Musk's SpaceX To Follow 'self-governing Principles' On Mars, Rejects Earth's Laws“, 1st November, 2020 15:22, Republic World.com, retrieved from: https://www.republicworld.com/technology-news/other-tech-news/elon-musks-spacex-to-follow-self-governing-principles-on-mars-rejects-earths-laws.html, on April 3rd, 2021.
(15) “Lex mercatoria spatialis” as defined in Hermida, J., “Legal Basis for a National Space Legislation”, Kluwer Academic Publishers, 2004, p. xxiii, retrieved from: https://books.google.fr/books?id=dst9BwAAQBAJ&pg=PR23&lpg=PR23&dq=hermida+lex+spatialis+mercatoria&source=bl&ots=RtW6hytiM7&sig=ACfU3U0LTxELWITaHCo3wyL4HkYHAdZ3Pg&hl=fr&sa=X&ved=2ahUKEwjJwPOnqOjvAhV_gP0HHWFiDQsQ6AEwAHoECAEQAw#v=onepage&q=hermida%20lex%20spatialis%20mercatoria&f=false, on March 29th, 2021.
(16) For more on transnational law, see “A Basic Introduction to Transnational Law”, Ch. II, Berkeley University, retrieved from: https://www.law.berkeley.edu/php-programs/courses/fileDL.php?fID=7587, on March 29th, 2021.
(17) Pistor, supra, note 7, at p. 135, 212.
(18) On May 23rd, 2017, Senator Cruz held hearings on finding out whether there was a need to update the OST. The witnesses from the private sector testified against changing it. See “Reopening the American Frontier: Exploring How the Outer Space Treaty Will Impact American Commerce and Settlement in Space”, Hearing before the Subcommittee on Space, Science and Competitiveness of the Committee on Commerce, Science and Transportation, United States Senate, 115th Congress, 1st Session, retrieved from: https://www.govinfo.gov/content/pkg/CHRG-115shrg29998/html/CHRG-115shrg29998.htm, on March 27th, 2021. (Hearings)
(19) For more, see Krause, J., “The Outer Space Treaty turns 50. Can it survive a new space race?, ABA Journal, April 1st, 2017, retrieved from: https://www.abajournal.com/magazine/article/outer_space_treaty, on April 1st, 2021.
(20) Ibid.
(21) For more on non-traditional actors, see Aganaba-Jeanty, T., “Common benefit from a perspective of “Non-traditional Partners”: A proposed agenda to address the status quo in Global Space Governance”, IAC, Toronto, 2014.
(22) For more on the democratisation of space, see Kim, D., “The “Democratization of Space” and the Increasing Effects of Commercial Satellite Imagery on Foreign Policy”, Center for Strategic and International Studies (CSIS), October 1st, 2019, retrieved from: https://www.csis.org/democratization-space-and-increasing-effects-commercial-satellite-imagery-foreign-policy, on April 2nd, 2021.
(23) For more on space law fragmentation, see Stotler, C., “Air and space law in the context of globalization and fragmentation”, LLM Thesis, McGill e-scholarship, retrieved from:https://escholarship.mcgill.ca/concern/theses/12579w03d, on March 20th, 2021.
(24) The UN forum for space-related matters is the UN Committee On Peaceful Uses of Outer Space (UNCOPUOS) which is subdivided into two sub-committees: legal and technical.
(25) As the references supra, note 18 and note 19, suggest, more pragmatic solutions in the near future can be implemented at the national level, or through bilateral agreements or through private law instruments such as contractual clauses and agreements between private entities..
(26) Pistor, supra, note 7, at p. 69.
(27) Ibid, at p. 222.
(28) See Cookson, C., “Private sector navigates outer space ahead of international law”, Financial Times, January 14th, 2020, retrieved from: https://www.ft.com/content/73145372-1b74-11ea-81f0-0c253907d3e0, on April 3rd, 2021.
(29) On “renovating” space law, see: Blount, P. J., “Renovating Space: The Future of
International Space Law, 40 Denv. J. Int'l L. & Pol'y, 2011, at p. 515, retrieved from: https://www.law.upenn.edu/live/files/7830-blountrnvtspcdnvrjintllawpolpdf, on March 29th, 2021.
(30) The concept of intergenerational equity can be found in the Moon Agreement, at article IV. However, a majority of nations did not sign the Moon Agreement and therefore it is debated whether this would be considered as customary law (See: Freeland, S., “Common heritage, not common law: How international law will regulate proposals to exploit space resources”, Questions of International Law (QIL), January 30th, 2017, retrieved from: http://www.qil-qdi.org/common-heritage-not-common-law-international-law-will-regulate-proposals-exploit-space-resources/, on April 3rd, 2021). Nonetheless, since sustainability is addressed on an increasingly important dimension with regards to space activities, it is expected to grant more attention to environmental law which the concept of sustainability is mostly derived from. Intergenerational equity is also stemming from environmental law.
(31) For more on legal design, see the “Legal Design Stanford University, at: https://law.stanford.edu/organizations/pages/legal-design-lab/.
(32) More on ethical compliance in the space sector can be found in Martinez, L. F., “Legal regime sustainability in outer space: theory and practice”, Cambridge University Press, December 5th, 2019, retrieved from: https://www.cambridge.org/core/journals/global-sustainability/article/legal-regime-sustainability-in-outer-space-theory-and-practice/614DDD6FE793315297AABBE983FA9168, on March 30th, 2021.
(33) More on the non-binding international antitrust guidelines can be found in the UNCTAD RPB Code: “The United Nations Set of Principles and Rules on Competition: The Set of Multilaterally Agreed Equitable Principles and Rules for the Control of Restrictive Business Practices”, UN, 2020, retrieved from: https://unctad.org/system/files/official-document/tdrbpconf10r2.en.pdf, on January 23rd, 2021.
(34) Bradford, A., “International Antitrust Negotiations and the False Hope of the WTO”, Harvard International Law Journal, VOL. 48, 2007, at p.. 383, retrieved from: https://scholarship.law.columbia.edu/faculty_scholarship/2633, on January 24th, 2021.
(35) Antitrust is heavily politicised, but according to Teachout, supra, note 7, at p. 212, there is an even bigger risk of depoliticised antitrust in the sense that by further depoliticising antitrust, regulators and politicians lose control over enforcing antitrust measures for the benefit of public interest and policy.
(36) One of the problems raised by politicised antitrust is the regulatory and subsidies support in favour of “national champions'' on a discriminatory basis. This support includes permitting case by case consolidation. See Fox, E. M., “Antitrust Regulation Across National Borders: The United States of Boeing Versus the European Union of Airbus”, Brookings.edu, Tuesday, December 1, 1998, retrieved from: https://www.brookings.edu/articles/antitrust-regulation-across-national-borders-the-united-states-of-boeingversus-the-european-union-of-airbus, on January 21st, 2021.
(37) Dula and Hightower in the Hearings, supra, note 18.
(38) A few basic principles against monopolies can be found in Teachout, supra, note 7, at p. 218.
(39) 51/122. Declaration on International Cooperation in the Exploration and Use of Outer Space for the Benefit and in the Interest of All States, Taking into Particular Account the Needs of Developing Countries, available at: https://www.unoosa.org/oosa/en/ourwork/spacelaw/principles/space-benefits-declaration.html. (40) However, according to Von der Dunk, F., in “Back in Business?The Moon Agreement, Private Actors and Possible Commercial Exploitation of the Moon and Its Natural Resources”, Session 5” The Acceptability of the Moon Agreement and Road Ahead?”, retrieved from: https://www.mcgill.ca/iasl/files/iasl/Moon-Proceedings-Part_5_2006.pdf, on March 24th, 2021, the Moon Agreement might be “back in business” and therefore not to be entirely discarded just yet.
(41) The Building Blocks of the HISRGWG, supra, note 13, at article 13 on benefits diverges from the article VII (20) of the Outer Space Institute’s “Vancouver Recommendations on Space Mining'' which recommends mandatory benefit sharing, including monetary benefits. The Vancouver Recommendations can be found at: http://www.outerspaceinstitute.ca/docs/Vancouver_Recommendations_on_Space_Mining.pdf.
(42) Supra, note 40.
(43) The legislations are listed, supra, note 11.
(44) The divergent views are expressed throughout De Man, P., “Exclusive Use in an Inclusive Environment:The Meaning of Non-Appropriation Principle For Space Resource Exploitation”, Springer, 2016.
(45) Article IX of the OST reads as follows:
“In the exploration and use of outer space, including the Moon and other celestial bodies, States Parties to the Treaty shall be guided by the principle of co-operation and mutual assistance and shall conduct all their activities in outer space, including the Moon and other celestial bodies, with due regard to the corresponding interests of all other States Parties to the Treaty. States Parties to the Treaty shall pursue studies of outer space, including the Moon and other celestial bodies, and conduct exploration of them so as to avoid their harmful contamination and also adverse changes in the environment of the Earth resulting from the introduction of extraterrestrial matter and, where necessary, shall adopt appropriate measures for this purpose. If a State Party to the Treaty has reason to believe that an activity or experiment planned by it or its nationals in outer space, including the Moon and other celestial bodies, would cause potentially harmful interference with activities of other States Parties in the peaceful exploration and use of outer space, including the Moon and other celestial bodies, it shall undertake appropriate international consultations before proceeding with any such activity or experiment. A State Party to the Treaty which has reason to believe that an activity or experiment planned by another State Party in outer space, including the Moon and other celestial bodies, would cause potentially harmful interference with activities in the peaceful exploration and use of outer space, including the Moon and other celestial bodies, may request consultation concerning the activity or experiment''.
(46) Cooperation is a principle which appears throughout the OST.
(47) There is a fine line, however, between cooperation and collusion. Collusion is an anti-competitive behavior defined as “collusion is "a deceitful agreement or compact between two or more persons, for the one party to bring an action against the other for some evil purpose, as to defraud a third party of his right" by the Black’s Law Dictionary.
(48) Due regard is defined by the Black’s Law Dictionary as: “This means to give a fair consideration to and give sufficient attention to all of the facts”.
(49) The Constitution of the International Telecommunications Union can be found at: https://www.itu.int/council/pd/constitution.html, retrieved on April 1st, 2021.
(50) Ibid, at article 45 harmful interference. It provides that:
“ARTICLE 45 - Harmful Interference
197 PP-98 - 1 All stations, whatever their purpose, must be established and operated in such a manner as not to cause harmful interference to the radio services or communications of other Member States or of recognized operating agencies, or of other duly authorized operating agencies which carry on a radio service, and which operate in accordance with the provisions of the Radio Regulations.
198 PP-98 - 2 Each Member State undertakes to require the operating agencies which it recognizes and the other operating agencies duly authorized for this purpose to observe the provisions of No. 197 above.
199 PP-98 - 3 Further, the Member States recognize the necessity of taking all practicable steps to prevent the operation of electrical apparatus and installations of all kinds from causing harmful interference to the radio services or communications mentioned in No. 197 above”.
(51) McCormick, P. K., and Mechanick, M. J., (eds), “The Transformation of Intergovernmental Satellite Organisations: Policy and Legal Perspectives”, Martinus Nijhoff Publishers, 2013, at p. 7.
(52) Ibid, at p. 15.
(53) Ibid, at p. 81, on the privatisation of Intelsat.
(54) The US Space Act of 2015 as listed, supra, note 12.
(55) Ibid. Section 402 provides that :
“(...) A U.S. citizen engaged in commercial recovery of an asteroid resource or a space resource shall be entitled to any asteroid resource or space resource obtained, including to possess, own, transport, use, and sell it according to applicable law, including U.S. international obligations“.
(56) The 2020 NASA Artemis Accords on the Principles for Cooperation in the Civil Exploration and Use of the Moon, Mars, Comets and Asteroids, of a bilateral nature, can be found at: https://www.nasa.gov/specials/artemis-accords/img/Artemis-Accords-signed-13Oct2020.pdf, retrieved on April 1st, 2021.
(57) Ibid, at section 11 on the Deconfliction of Space Activities.
(58) Ibid, at section 11.6, on Safety Zones.
(59) Ibid, at section 11.1.
(60) Ibid, at section 11.3.
(61) Treaty on the Functioning of the European Union, at articles 101-109, available at: https://eur-lex.europa.eu/legal-content/EN/TXT/?uri=celex%3A12012E%2FTXT.
(62) Ibid, at article 102, on the abuse of dominance and anti-competitive behaviour. See Gerber, D. J., The Future of Article 82: Dissecting the Conflict (August 2007). European Competition Law Annual 2007: A Reformed Approach to Article 82 EC (Claus-Dieter Ehlermann and Mel Marquis eds.), 2008, Chicago-Kent College of Law Research Paper, Available at SSRN: https://ssrn.com/abstract=2159343, retrieved on April 6th, 2021.
(63) TFEU, supra, note 61, at article 101(1).
(64) Sherman Antitrust Act, 15 U.S.C. §§ 1-7.
(65) Clayton Antitrust Act, 15 U.S.C. §§ 12–27, 29 U.S.C. §§ 52–53).
(66) Posner distinguishes between natural and artificial monopolies. Natural monopolies are, in theory, legitimate when they enable massive economies of scale. See: Posner, R., “Antitrust Law”, University of Chicago Press, 2nd ed., 2001.
(67) Sherman Act, supra note 65, at section 1.
(68) “What You Can Do To Fight Monopolies with Zephyr Teachout and Barry C. Lynn” Media (Video), retrieved from: https://us.macmillan.com/books/9781250200891, on March 29th, 2021.
(69) Posner, supra, note 66.
(70) The 1972 Convention on International Liability for Damage Caused by Space Objects, available at: https://www.unoosa.org/oosa/en/ourwork/spacelaw/treaties/introliability-convention.html.
(71) ln the 1976 Convention on Registration of Objects Launched into Outer Space (Registration Convention), article I defines, at section c) “The term "State of registry" means a launching State on whose registry a space object is carried in accordance with article II” and article II provides that:
“1. When a space object is launched into earth orbit or beyond, the launching State shall register the space object by means of an entry in an appropriate registry which it shall maintain. Each launching State shall inform the SecretaryGeneral of the United Nations of the establishment of such a registry.
2. Where there are two or more launching States in respect of any such space object, they shall jointly determine which one of them shall register the object in accordance with paragraph 1 of this article, bearing in mind the provisions of article VIII of the Treaty on Principles Governing the Activities of States in the Exploration and Use of Outer Space, including the Moon and Other Celestial Bodies, and without prejudice to appropriate agreements concluded or to be concluded among the launching States on jurisdiction and control over the space object and over any personnel thereof.
3. The contents of each registry and the conditions under which it is maintained shall be determined by the State of registry concerned”.
Article VIII of the OST elaborates on the registry with respect to jurisdiction and ownership:
“Article VIII
A State Party to the Treaty on whose registry an object launched into outer space is carried shall retain jurisdiction and control over such object, and over any personnel thereof, while in outer space or on a celestial body. Ownership of objects launched into outer space, including objects landed or constructed on a celestial body, and of their component parts, is not affected by their presence in outer space or on a celestial body or by their return to the Earth. Such objects or component parts found beyond the limits of the State Party to the Treaty on whose registry they are carried shall be returned to that State Party, which shall, upon request, furnish identifying data prior to their return”,
while in terms of liability, article VII is invoked:
“Article VII
Each State Party to the Treaty that launches or procures the launching of an object into outer space, including the Moon and other celestial bodies, and each State Party from whose territory or facility an object is launched, is internationally liable for damage to another State Party to the Treaty or to its natural or juridical persons by such object or its component parts on the Earth, in air space or in outer space, including the Moon and other celestial bodies”.
It has been observed, in some cases, that these articles lead to confusion between “launching State” and “State of Registry”.
(72) Sofia Guidelines for a Model Law on National Space Legislation of the International Law Association (ILA), UNCOPUOS, retrieved from: https://www.unoosa.org/pdf/limited/c2/AC105_C2_2013_CRP06E.pdf, on March 29th, 2021.
(73) See Teachout, supra, note 7, at chapter 4 on the contractual power.
(74) Elon Musk has bought oil rigs for launching purposes from the ocean. This begs the hypothetical question as to the law applicable in case these and future rigs are in either territorial sea or international waters. See O’Callaghan, J., “Elon Musk’s SpaceX May Have Bought Two Oil Rigs And Named Them ‘Phobos’ And ‘Deimos’ For Future Starship Launches To Mars”, Forbes, January 19th, 2021, retrieved from: https://www.forbes.com/sites/jonathanocallaghan/2021/01/19/elon-musks-spacex-may-have-bought-two-oil-rigs-and-named-them-phobos-and-deimos-for-future-starship-launches-to-mars/?sh=105f9aaa17b2, on April 6th, 2021.
(75) The Guidelines for the Long-term Sustainability of Outer Space Activities (LTSOSA), available at: https://www.unoosa.org/res/oosadoc/data/documents/2018/aac_1052018crp/aac_1052018crp_20_0_html/AC105_2018_CRP20E.pdf), took almost a decade to be finalised.
(76) “Licensing of IP rights and competition law”, OECD, June 6th, 2019, retrieved from: https://www.oecd.org/daf/competition/licensing-of-ip-rights-and-competition-law.htm, on April 6th, 2021.
(77) Pistor, supra, note 7, at p. 126.
(78) Ibid.
(79) Ibid, at p. 135.
(80) Supra, note 76.
(81) Special attention should be granted to “consortium blockchains” which can lead to collusion. For more on consortium blockchains, see De Filippi, P., “Blockchain et cryptomonnaies”, Que Sais-je?, 2018, at p.111.
(82) Pistor, supa, noe 7, at p.187.
(83) Ahadi, B., et al., “Space Resources Commodities Exchange'', New Space, Vol. 8., No. 2, 12 June 2020, paper available online at: https://doi.org/10.1089/space.2019.0039; Cahan, B., “Space Commodities Panel'', NewSpace 2017, video available online at: https://www.youtube.com/watch?v=EWEtBIxREsU. Also, see Space Commodities Exchange at: http://www.spacecommoditiesexchange.com/.
(84) Ostrom’s matrix of goods refers to categorising the goods according to excludability and rivalry levels. See: Ostrom, E., ‘’Beyond markets and states: polycentric governance of complex economic systems’’, American Economic Association, vol. 100, no 3, juin 2010, p. 641–72).
(85) Ibid.
(86) Ahadi and Cahan, supra, note 84, who both classify commodities in five “baskets”, from raw materials to financial rights.
(87) Von der Dunk, F. G., “Shaking the Foundations of the Law: Some Legal Issues Posed by a Detection of Extra-Terrestrial Life”, p. 251, in Schwartz, J. S. J., and Milligan, T., (eds), “The Ethics of Space Exploration”, Springer, 2016.
(88) Pistor, supra, note 7, at p. 193, on creating “property rights from scratch”.
(89) Ibid, at p. 203.
(90) Ibid, at p.192.
(91) Ibid, at p. 183. The purpose of a trust can be understood throughout Chapter 8.
(92) Ibid, at p. 211.
(93) Mosher, D., Harrington, R. ”SpaceX and its biggest competitors are waging a space battle on Capitol Hill”, Business Insider, Oct. 4th, 2021. Available at: https://www.businessinsider.com/spacex-ula-competition-spacewar-politics-2016-10?IR=T, retrieved on January 17th,2021.
(94) Pistor, supra, note 7, refers to “secular stagnation”.
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