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.